Delhi District Court
State vs Ishwar on 24 December, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
FIR No.: 256/2014
PS.: Civil Lines
u/S.: 452/304/34 IPC
State Vs. Ishwar & Ors.
(a) SC Case No. 204/2017
(b) CNR No. DLCT01-003971-2017
(c) Date of commission On 05.06.2014 at around 09:00
of offence p.m. onwards at H. No. 17, Old
Chandrawal, Civil Lines, Delhi.
(d) Name of the Gopal, S/o. Shri. Narain Dass, R/o.
complainant H. No. 17, Old Chandrawal, Civil
Lines, Delhi-110054.
(e) Name of the accused i) Ishwar, S/o. Late Shri. Prabhu
person(s), parentage Dayal, R/o. H. No. 192/16, Old
and residence Chandrawal, Delhi;
ii) Manoj, S/o. Late Shri. Prabhu
Dayal, R/o. H. No. 192/16, Old
Chandrawal, Delhi; and
iii) Veeru, S/o. Late Shri. Prabhu
Dayal, R/o. H. No. 192/16, Old
Chandrawal, Delhi.
(f) Plea of the accused Not guilty
persons
(g) Final Order The accused persons are acquitted
of the charges levelled against
them
(h) Date of institution of 10.03.2017
case
(i) Date when judgment 11.11.2025
was reserved
(j) Date when judgment 24.12.2025
was pronounced
JUDGMENT
INTRODUCTION:
1. Succinctly, the case of the prosecution is that on 05.06.2014, at around 09:55 p.m., DD No. 31PP was received at SC No. 204/2017 State v. Ishwar & Ors. Page 1 of 60 police post chowki Majnu ka Tila inter alia to the effect that at around 09:17 p.m., an information was received at Aruna Asaf Ali Hospital that one Yashoda, W/o. Narayan Dass was brought dead in the Hospital and that a police official/IO be sent to the said Hospital for inquiry/investigation (दिनांक 05.06.2014 को समय 9.55 P.M पर DD No.31 PP चौकी मजनू का टीला, प्राप्त हु ई जिसका मजमून जैल है "समय 9.17 P.M पर दर्ज है कि Aruna Asaf Ali Hospital से इतला दी है कि यशोदा w/o Narayan Dass Age-60 years r/o H.No.-17, Old Chandrawal, Civil Line, Delhi को MLC No. 1655/14 पर PCR ने Brought dead दाखिल Hospital कराया गया है।
IO भेजा जाए।..."). Consequently, SI Laxman along Ct. Manoj reached at the said Hospital, where HC Sanjay was found present. Correspondingly, SI Laxman obtained the MLC No. 1655/14, dated 05.06.2014, wherein the concerned Doctor had inter alia recorded, "...A/H/O Physical assault & brought to casualty in unconscious State..." and "...Pt. is declared brought dead...". Simultaneously, the complainant, namely, Gopal ( hereinafter referred to as the 'complainant'), son of the deceased was found present in the Hospital and his statement was recorded.
2. Markedly, under his complaint, the complainant inter alia proclaimed that on 05.06.2014 at around 09:00 p.m., he/the complainant reached his home from work. At that point in time, as per the complainant, his father and mother, namely, Yashoda was present at the house (आज दिनांक 05.06.2014 को मैं करीब 9.00 P.M पर घर पहुंचा था। मेरे पिताजी व मेरी माँ यशोदा घर पर ही थे।). The complainant further proclaimed that his father was addicted to alcohol and that even on the said date, he/complainant's father had consumed alcohol and that he was abusing, while under influence of said intoxicant (मेरे पिताजी शराब के आदि हैं । आज भी मेरी पिताजी ने शराब पी रखी थी व शराब के नशे में गाली गलौच कर रहे थे ). Further, as per the complainant, suddenly, at that point in time, his/complainant's SC No. 204/2017 State v. Ishwar & Ors. Page 2 of 60 maternal uncle's son, namely, Ishwar, S/o. Prabhu Dayal, reached at their home along with both his brothers, namely, Manoj and Veeru (hereinafter accused persons, namely, Ishwar, Manoj and Veeru are collectively referred to as the 'accused persons'), and started fighting with the complainant's father ( तभी मेरे पड़ोस में रहने वाला मेरे मामा का लड़का Ishwar s/o Late Sh. Prabhu Dayal r/o H.No. 192/16, Old Chandrawal, Delhi अपने दोनों भाई मनोज व वीरु के साथ मेरे घर पर आया व मेरे पिताजी के साथ झगडा करने लगे ). As per the complainant, the accused persons were asking from the his/complainant's father as to why he was abusing and as the complainant tried to intervene, the accused persons are avowed to have started a scuffle and fight with him/the complainant (व कहने लगे की तुम हमे गाली क्यों दे रहे हो। जब मैंने बीच बचाव किया तो मेरे साथ भी झगड़ा व हाथापाई करने लगे।). The complainant further proclaimed under his complaint that on hearing such noise, his mother, namely, Smt. Yashoda (hereinafter referred to as the 'deceased') also reached there and tried to intervene so that the scuffle/fight could be ended. However, as per the complainant, accused Ishawar slapped Yashoda, in rage, while uttering, "...old woman! You, do not intervene..." (यह शोर सुनकर मेरी माँ यशोदा भी आ गयी व हमें झगड़ा करने से रोकने लगी तभी गुस्से में ईश्वर ने मेरी माँ यशोदा को थप्पड़ मार दिया व कहने लगा की बुढिया तू हमारे बीच में मत आ). In the said process, accused persons, Manoj and Veeru are further asserted to have pushed Smt. Yashoda, consequent to which, she fell and got unconscious (और मनोज व वीरू ने मेरी माँ को धक्का मारा जिससे मेरी माँ गिर गयी व गिरकर बेहोश हो गयी।). Upon this, the complainant is proclaimed to have made a call at 100 number, and Smt. Yashoda was shifted to Aruna Asaf Ali Hospital in a PCR Van, where she was declared brought dead (तब मैंने 100 नंबर पर call कर दी व PCR की गाड़ी मेरी भी को Aruna Asaf All Hospital लेकर आई जहाँ पर Doctor साहब ने Check करके बताया की मेरी माँ यशोदा की मौत हो गयी है।). Consequently, upon SC No. 204/2017 State v. Ishwar & Ors. Page 3 of 60 the statement of the complainant having been recorded, SI Laxman sent the body of the deceased to Subzi Mandi Mortuary for preservation and he/SI Laxman along with the complainant HC Sanjay reached at the spot of occurrence, i.e., H. No. 17, Old Chandrawal, Civil Lines, Delhi (hereinafter referred to as the 'spot').
REGISTRATION OF FIR AND INVESTIGATION:
3. Notably, in light of the foregoing facts and on the basis of the aforesaid complaint of the complainant, tehrir, whic was prepared was sent by SI Laxman through HC Sanjay for the registration of the FIR. Consequently, the instant FIR came to be registered for the offences under Sections 304/34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and the investigation of the present case was marked to Insp. Kamal Kishor (offence u/s 304/34 IPC का घटित होना पाया गया लिहाजा एक तहरीर हजा बागर्ज कायमी मुकद्दमा SI साहब ने बदस्त H.C1. Sanjay 476/N थाना भिजवाई व आइन्दा तफ्तीश हवाले inspr. Kamal Kishor साहब हु ई।).
4. Markedly, during the course of ensuing investigation, postmortem examination of the deceased was got conducted, besides the heart of the deceased was got preserved for final opinion of Heart Histopathology test. Consequently, upon such test being conducted, Histopathology Report was obtained by the concerned IO as well as the opinion regarding, ' Whether push & pull or manhandling could cause heart attack in this case?' was obtained from the concerned Doctor, wherein it was inter alia, opined, "...cardiogenic mark due to coronaries Artery insufficiency. Injuries present over body caused by blunt force impact and possible to cause by Assault. This could be precipitated by push & pull or manhandling/Assault just before death or at the time of death...". Congruently, accused Manoj was SC No. 204/2017 State v. Ishwar & Ors. Page 4 of 60 arrested in the present case, while co-accused persons, namely, Ishwar and Veeru, surrendered in the concerned court. Further, statements of various witnesses, including that of the relatives of the deceased were got recorded by the concerned police official(s)/IO.
FILING OF CHARGESHEET AND COMMITTAL PROCEEDINGS: 5. Markedly, upon conclusion of aforenoted
investigation in the instant case, chargesheet was filed by the concerned IO before Ld. Metropolitan Magistrate, Central, Tis Hazari Courts under Sections 452/304/34 IPC. Correspondingly, cognizance of offence(s), as specified under the chargesheet, was taken by Ld. Metropolitan Magistrate-06/Ld. MM-06, Central, Tis Hazari Courts on 31.08.2016 as well as the copy(ies) of chargesheet was(ere) supplied to the accused persons, against acknowledgement in terms of the provisions under Section 207 Cr.P.C. on 03.10.2016. Subsequently, vide order dated 06.03.2017, Ld. MM, Central, Tis Hazari Court, passed an order of committal of the present case before the Ld. Predecessor Judge, routed via Ld. District & Sessions Judge, Tis Hazari Courts. CHARGE FRAMING:
6. Subsequently, on matter being listed before the Ld. Predecessor Judge, on committal and upon arguments on charge, having been addressed by/on behalf of the accused persons and State, Ld. Predecessor Judge vide order dated 24.10.2017, directed framing of charges under Sections 304/34 IPC against the accused persons. Notably, the relevant extract(s) of the said order of charge dated 24.10.2017, is reproduced as under;
"...The version of the prosecution is that on 05.06.2014 at around 9:00 p.m. at house No. 17, Old SC No. 204/2017 State v. Ishwar & Ors. Page 5 of 60 Chandrawal, Civil Lines, Delhi, the accused persons with common intention committed culpable homicide not amounting to murder by causing death of one Smt. Yashoda.
It is well settled that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of the ingredients constituting the alleged offence. The court is not supposed to meticulously examine and assess in detail the material placed on record by the prosecution to assess whether there is sufficient ground for conviction of the accused. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame charge. Reference is made to the judgments of Hon'ble Supreme Court titled as Superintendent and Remembrance of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja AIR 1980 SC 52, State of Delhi Vs. Gyan Devi AIR 2001 SC 40, State of Bihar Vs. Ramesh Singh AIR 1977 SC 2018 and Soma Chakravarty Vs. State AIR 2007 SC 2149. The material on record discloses that a prima facie case for the offence under Section 304/34 of IPC is made out against accused persons. Charge ought to be framed against the accused persons for the said offence.
Charge is framed against accused persons separately. Charge is read over and explained to accused persons. Accused persons plead not guilty and claim trial.
The case is fixed for PE on ..."
(Emphasis supplied)
7. Further, it is apposite to reproduce the charges, framed against the accused on 24.10.2017, by the Ld. Predecessor Judge, pursuant to the aforesaid order, as under;
"...I, ***, Addl. Sessions Judge-III [Central], Delhi do hereby charge you (1) Ishwar S/o Sh. Prabhu Dayal, (2) Manoj Kumar S/o Sh. Prabhu Dayal, (3) Veeru S/o Sh. Prabhu Dayal as under:
That on 05.06.2014 at around 9.00 p.m. at house number 17, Old Chandrawal, Civil Lines, Delhi, you all in furtherance of your common intention committed culpable homicide not amounting to murder by causing death of one Smt. Yashoda and thus all of you committed an offence punishable under SC No. 204/2017 State v. Ishwar & Ors. Page 6 of 60 U/S 304/34 IPC, and within my cognizance. And, I hereby direct that you all be tried by this Court for the aforesaid offence..."
(Emphasis supplied) PROSECUTION EVIDENCE:
8. Notably, during the course of proceedings, prosecution examined 22 (twenty two) witnesses/prosecution witnesses, who deposed in their respective testimonies, regarding the following;
Prosecution Particulars of Description
witness no. the witness
PW-1 Shri. Gopal Eyewitness/complainant, who inter
alia deposed regarding the incident.
PW-2 Dr. Leela Pant Conducted the examination of the
heart, part of the major vessels and
lymph nodes of the deceased.
PW-3 Ct. Manoj Deposed regarding him inter alia
Kumar depositing the dead body of the
deceased in the mortuary.
PW-4 Dr. Ruchita Testified regarding examination of
deceased and preparation of her
MLC.
PW-5 SI Laxman Deposed of him preparing the
Kumar rukka and sending the same to the
police station for registration of FIR
through HC Sanjay.
PW-6 Dr. S. Lal Deposed of him conducting
postmortem examination of the
deceased as well as proved his report
in this regard.
PW-7 ASI Braham Testified regarding the registration
Dass of instant FIR, on receipt of rukka
from HC Sanjay.
PW-8 HC Sanjay Deposed regarding him taking
rukka to the police station, getting
the FIR registered and of him
subsequently, taking of original
rukka and copy of FIR to the
concerned IO.
PW-9 Shri. Laxman Eyewitness and deposed regarding
Rohit the incident in question.
PW-10 HC Khem Testified regarding recording of DD
Chand No. 31PP as well as DD No. 32PP
and proved the same.
PW-11 W/Ct. Santosh Deposed regarding recording of
SC No. 204/2017 State v. Ishwar & Ors. Page 7 of 60
information of quarrel on
05.06.2014 vide channel no. 155.
PW-12 SI Ummed Proved the Certificate under Section
Singh 65 of the Indian Evidence Act, 1872
(hereinafter referred to as the
'Evidence Act') in respect of PCR
Call recorded vide channel no. 155.
PW-13 ASI Ombir Deposed regarding receiving
Singh information regarding quarrel at H.
No. 17, Gali No. 2, Old Chanderwal
on 05.06.2014, and of him/PW-13's
shifting the old lady to Aruna Asaf
Ali Hospital.
PW-14 Ct. Sunil Kumar Deposed regarding informing PP
Majnu ka Tila of factum of one lady
having been brought to Hospital by
PCR Van.
PW-15 ASI Satish Proved the malkhana deposit and
Kumar transit records of the samples.
PW-16 Ct. Dildar Singh Deposed of collecting of three
sample parcels along with sample
seal from AAA Hospital and
handing over of the same to Insp.
Kamal Kishor on 06.06.2014.
PW-17 SI Nagender Deposed of preparation of report of
Giri the crime scene (Ex. PW17/A) and
proved the same.
PW-18 Ct. Sudesh Photographer of crime scene, who
Kumar deposed of taking photographs of
the crime scene/spot as well as he
proved the said photographs.
PW-19 Ct. Rajesh Deposed regarding the
Kumar apprehension/arrest proceedings of
accused, namely, Ishwar and
Veeru.
PW-20 Ct. Jatin Deposed of him joining the arrest
proceedings of accused, namely,
Manoj.
PW-21 Insp. Kamal First Investigating Officer/IO of the
Kishor present case, who inter alia deposed
regarding him conducting the
investigation in the present case.
PW-22 Insp. Surender Second Investigating Officer/IO of
Kumar the present case, who inter alia
deposed of arrest, interrogation and
remand of the accused persons as
well as of preparation and filing of
the chargesheet.
SC No. 204/2017 State v. Ishwar & Ors. Page 8 of 60
8.1. Pertinent to note here that the aforenoted
witnesses/prosecution witnesses further exhibited/proved the following documents, during the course of their respective evidence;
Exhibit no. Description of Exhibit Proved
by/Attested by
Ex. PW1/A Complainant/Statement of the PW-1/Gopal,
complainant, recorded by police PW-5/SI Laxman
officials Kumar
Ex. PW1/B Dead body identification memo PW-1/Gopal
and
Ex. PW1/C
Ex. PW1/D Dead body handing over memo PW-1/Gopal
Ex. PW2/A Report of examination of PW-2/Dr. Leela
deceased's heart Pant
Ex. PW4/A MLC No. 1655/14 of the PW-4/Dr. Ruchita
deceased, Smt. Yashoda, W/o.
Sh. Narayan Dass
Ex. PW5/A Endorsement of SI Laxman on PW-5/SI Laxman
the complaint (Ex. Kumar
PW1/A)/rukka
Ex. PW6/A Post-mortem report of the PW-6/Dr. S. Lal
deceased, Smt. Yashoda, W/o.
Sh. Narayan Dass
Ex. PW6/B Subsequent opinion in relation to PW-6/Dr. S. Lal
post-mortem report no. 926/14
Ex. PW7/A Copy of FIR No. 256/14/present PW-7/ASI
FIR Braham Dass
Ex. PW7/B Endorsement on rukka PW-7/ASI
Braham Dass
Ex. PW7/C Certificate under Section 65B of PW-7/ASI
the Indian Evidence Act, Braham Dass
1872/Evidence Act in respect of
FIR No. 256/14/present FIR
Ex. PW8/A DD No. 31PP-information PW-8/HC Sanjay,
regarding quarrel near Durga and
Temple, Old Chandrawal, Delhi PW-10/HC Khem Chand Ex. PW10/A DD No. 32PP-information PW-10/HC Khem regarding admission of Yashoda, Chand brought dead to Aruna Asaf Ali Hospital Ex. PW12/A Certificate under Section 65B of PW-12/SI the Evidence Act in respect of Ummed Singh PCR Call/Form 1 of CPCR/PHQ, Delhi Ex. PW12/B PCR Form PW-12/SI SC No. 204/2017 State v. Ishwar & Ors. Page 9 of 60 Ummed Singh Ex. PW15/A Entry at Sr. No. 585, in Register PW-15/ASI No. 19 in respect of deposit Satish Kumar sealed parcel by IO in malkhana Ex. PW15/B Road certificate No. 112/21/14 in PW-15/ASI respect of transit of sealed parcel Satish Kumar containing heart along with sample seal to Bara Hindu Rao Hospital Ex. PW15/C Copy of acknowledgement of PW-15/ASI transit Satish Kumar Ex. PW16/A Seizure memo in respect of PW-16/Ct. Dildar sealed parcels and sample seal Singh Ex. PW17/A Crime Team report PW-17/SI Nagender Giri Ex. PW18/A1 Photographs of scene of crime PW-18/Ct.
to (three in number) Sudesh Kumar
Ex. PW18/A3
Ex. PW19/A Arrest memo of accused, IshwarPW-19/Ct. Rajesh
Kumar
Ex. PW19/B Arrest memo of accused, Veeru PW-19/Ct. Rajesh
Kumar
Ex. PW20/A Arrest memo of accused, Manoj PW-20/Ct. Jatin
Ex. PW20/B Personal search memo of PW-20/Ct. Jatin
accused, Manoj
Ex. PW21/A Site plan PW-21/SI Kamal
Kishor
Ex. PW22/A Personal search memo of PW-22/Insp.
accused, Ishwar Surender Kumar
Ex. PW22/B Personal search memo of PW-22/Insp.
accused, Veeru Surender Kumar
8.2. Notably, all the aforenoted prosecution witnesses were cross-examined by/on behalf of the accused persons by their Ld. Counsel.
EXAMINATION OF ACCUSED PERSONS:
9. Apposite to note here that upon conclusion of prosecution evidence, separate statements of accused persons, in terms of the provisions under Section 313 Cr.P.C., were recorded wherein the accused persons inter alia denied their involvement in the present case and proclaimed that they were falsely implicated. Notably, under his said statement dated 28.03.2024, the accused, namely, Veeru inter alia asserted that he was not SC No. 204/2017 State v. Ishwar & Ors. Page 10 of 60 present at the site and was falsely implicated in the present case as the complainant and his father was residing in his/accused Veeru's house and wanted to save their possession by falsely implicating the accused persons in the present case. Apposite to reproduce the relevant extracts from the said statement of accused, Veeru, recorded under Section 313 Cr.P.C., on 28.03.2024, as under;
"...Q. 1: It is in evidence against you that PW-1/Sh. Gopal has deposed that he was residing at H.No. 17, Old Chandrawal, Civil Lines, Delhi-110054 and running a private job at relevant point in time. It is further in evidence that on 05.06.2014 at about 08:45 p.m., he/PW-1 reached his house. It is further in evidence that as per PW-1, his/PW-1's parents along with other family members were present at the house and at that time, his/PW-1's father was under the influence of liquor and he was quarrelling with his/PW-1's mother and was abusing. What do you have to say?
Answer: I was not present at site.
Q. 2: It is in evidence against you that PW-1/Sh. Gopal has deposed that accused, Ishwar, Manoj and Veeru, who were all correctly identified by PW-1 in Court on the day of his deposition, came there/at his house and they/the said accused persons started quarrelling with his/PW-1's father. It is further in evidence that as per PW-1 when he/PW-1 reached on the first floor of the house, they/the accused persons started quarrelling with his/PW-1's father. It is further in evidence that as per PW-1, the mother and sister of accused persons were also present in the room. What do you have to say?
Answer: I was not present at the site and had gone with my friend and I was told the facts later on.
*** *** *** Q. 8: It is in evidence against you that PW-2/Dr. Leela Pant has deposed that after examination of the exhibits, they found that tissue taken from left anterior descending artery along with attached fat showed two arteries showing atherosclerotic changes with calcification, occluding 40% and 75% of lumen in both, respectively. It is further in evidence that as per PW-2, tissue taken from left circumflex artery with attached fat showed an artery showing atherosclerotic changes with calcification, occluding 60% of lumen. It is further in evidence that as per SC No. 204/2017 State v. Ishwar & Ors. Page 11 of 60 PW-2, tissue taken from the right coronary artery with attached fat showed two arteries showing atherosclerotic changes with calcification, occluding more than 80% of lumen in both. It is further in evidence that as per PW-2, multiple areas of fibrosis in left ventricular wall noted. It is further in evidence that as per PW-2, tissue from aorta showed atheromatous changes with calcification. It is further in evidence that as per PW-2, tissue from three tiny lymph nodes showed reactive change with congestion and anthracotic pigment. What do you have to say?
Answer: I cannot say, however Smt. Yashoda was my bua and she was suffering from heart problem and several other diseases and her opertaion was already made, I do not have any complaint with my bua.
*** *** *** Q. 24: It is in evidence against you that PW-9/Sh. Laxman Rohit has deposed that on 05.05.2014, he/PW-9 was present at the house of his uncle, Sh. Narain Dass at; 17, Old Chandrawal, Civil Lines, Delhi. It is further in evidence that as per PW-9, at that point in time, he/PW-9 was pursuing his degree in Law. It is further in evidence that as per PW-9 at about 09:00 p.m. on the said day/05.05.2014, he/PW-9 was sitting after having meal and after some time, his/PW-9's cousin Gopal came to the house. It is further in evidence that as per PW-9, he/PW-9, suddenly, heard the noise of quarrel and he/PW-9 along with Gopal and mother of Gopal, Smt. Yashoda went to the first floor of the house. It is further in evidence that as per PW-9, he/PW-9 saw that the accused persons, Ishwar, Manoj and Veeru, who were correctly identified by PW-9 in Court, were quarrelling with his/PW-9's uncle Shri Narain Dass. What do you have to say?
Answer: It is wrong that I went at the first floor. I was not present at the site.
Q. 25: It is in evidence against you that PW-9/Sh. Laxman Rohit has deposed that he/PW-9 tried to intervene in the quarrel but you along with co-accused persons were very annoyed. It is further in evidence that as per PW-9, in the meantime, after hearing noise of quarrel, mother of accused persons also came there. It is further in evidence that as per PW-9, he/PW-9 asked them to come downstairs as the room in which quarrel was going on was very small and his/PW-9's uncle Narain Dass had problem of Asthma. It is further in evidence that as per PW-9, he/PW-9 asked the accused persons to talk on the ground floor of the house. It is further in evidence that as per PW-9, SC No. 204/2017 State v. Ishwar & Ors. Page 12 of 60 thereafter, all of them came to the ground floor but the accused persons continued quarrelling with them/PW-9 and his relatives. What do you have to say?
Answer: It is wrong totally. I have not entered into the house my bua had fallen down outside the house where I saved her and asked her husband to pardon her only. I was not present at the spot.
Q. 26: It is in evidence against you that PW-9/Sh. Laxman Rohit has deposed that the accused persons hurled abuses at Gopal and his brother and also gave beatings to them. It is further in evidence that as per PW-9, the accused Ishwar also gave a slap on the face of Smt. Yashoda. It is further in evidence that as per PW-9, Manoj, who was also quarrelling with Gopal suddenly came and pushed Smt. Yashoda due to which she fell down. What do you have to say? Answer: It is wrong to suggest that I hurled abuses at Gopal and his brother and also gave beatings to them or that Ishwar also gave a slap on the face of Smt. Yashoda. The statement were made falsely. I was not present at the spot.
*** *** *** Q. 54: Why was this case registered against you? Answer: The Gopal and his father was / is residing in our house and wanted to safe there possession in the said house by implicating us and forcing us to make a compromise at the terms and conditions of the Gopal and his family.
Q. 55: Why have the PWs deposed against you? Answer: The PWs of the family of Gopal lead evidence at the instance of Gopal and police officals stated as wrongly told to them.
Q. 56: Do you want to lead any evidence in your defence?
Answer: Yes.
Q. 57: Do you want to say anything else?
Answer: Nothing..."
(Emphasis supplied) 9.1. Correspondingly, accused, Manoj denied his involvement in the present case and his false implication. Apposite to reproduce, relevant extracts from the statement of accused, SC No. 204/2017 State v. Ishwar & Ors. Page 13 of 60 Manoj, recorded under Section 313 Cr.P.C. on 28.03.2024, as under;
"...Q. 1: It is in evidence against you that PW-1/Sh. Gopal has deposed that he was residing at H.No. 17, Old Chandrawal, Civil Lines, Delhi-110054 and running a private job at relevant point in time. It is further in evidence that on 05.06.2014 at about 08:45 p.m., he/PW-1 reached his house. It is further in evidence that as per PW-1, his/PW-1's parents along with other family members were present at the house and at that time, his/PW-1's father was under the influence of liquor and he was quarrelling with his/PW-1's mother and was abusing. What do you have to say?
Answer: Gopal was not present at site, he came in hospital unless MLC was made. I had no dispute with PW-1. Veeru has not present at the site. It is correct that PW-1 was under the influence of liquor and he was beating to his wife and when she came out she fell down at that time I was outside my house and I ran to protect her and tried to safe her from Narayan Dass / PW-1. The sister of Gopal made a call at PCR and police had taken to Smt. Jashoda (deceased) to hospital.
Q. 2: It is in evidence against you that PW-1/Sh. Gopal has deposed that accused, Ishwar, Manoj and Veeru, who were all correctly identified by PW-1 in Court on the day of his deposition, came there/at his house and they/the said accused persons started quarrelling with his/PW-1's father. It is further in evidence that as per PW-1 when he/PW-1 reached on the first floor of the house, they/the accused persons started quarrelling with his/PW-1's father. It is further in evidence that as per PW-1, the mother and sister of accused persons were also present in the room. What do you have to say?
Answer: Gopal had made false statement to implicate us in the present false case as he was not presonally present and facts were told to him wrongly by his father (Sh. Narayan Dass), they are living in our house and they wanted to implicate us and make settlement in their own way and for that also Gopal made the statement.
Q. 3: It is in evidence against you that PW-1/Sh. Gopal has deposed that when he/PW-1 intervened in the quarrel, accused Manoj and Veeru started quarrelling with him/PW-1. It is further in evidence that as per PW-1, in the meantime, Smt. Yashoda SC No. 204/2017 State v. Ishwar & Ors. Page 14 of 60 came and tried to stop the quarrel. It is further in evidence that as per PW-1, accused Ishwar gave a slap to his/PW-1's mother Smt. Yashoda and accused Manoj and Veeru pushed his/PW-1's mother. It is further in evidence that as per PW-1, his/PW-1's mother fell down and became unconscious. What do you have to say?
Answer: It is wrong that anyone either me or my brothers slept Yashoda. Gopal has made false statement. Veeru was not present even he came later on because he is a government servent and Gopal wanted to get him suspended from the government job. Smt. Yashoda had fallen down herself as her husband under liquor was following her and she ran outside the house to protect herself.
*** *** *** Q. 8: It is in evidence against you that PW-2/Dr. Leela Pant has deposed that after examination of the exhibits, they found that tissue taken from left anterior descending artery along with attached fat showed two arteries showing atherosclerotic changes with calcification, occluding 40% and 75% of lumen in both, respectively. It is further in evidence that as per PW-2, tissue taken from left circumflex artery with attached fat showed an artery showing atherosclerotic changes with calcification, occluding 60% of lumen. It is further in evidence that as per PW-2, tissue taken from the right coronary artery with attached fat showed two arteries showing atherosclerotic changes with calcification, occluding more than 80% of lumen in both. It is further in evidence that as per PW-2, multiple areas of fibrosis in left ventricular wall noted. It is further in evidence that as per PW-2, tissue from aorta showed atheromatous changes with calcification. It is further in evidence that as per PW-2, tissue from three tiny lymph nodes showed reactive change with congestion and anthracotic pigment. What do you have to say? Answer: I cannot say, however Smt. Yashoda was my bua and she was suffering from heart problem and several other diseases and her opertaion was already made, I do not have any complaint with my bua.
*** *** *** Q. 17: It is in evidence against you that PW-6/Dr. S. Lal, Specialist Grade-I, Lal Bahadur Shastri Hospital, Khirchipur, Delhi, has deposed that in her opinion, the postmortem findings suggested coronary artery disease. However, the heart was preserved for pathological examination. It is further in evidence that as per PW-6, the injuries present over body were SC No. 204/2017 State v. Ishwar & Ors. Page 15 of 60 possibly caused by blunt force impact and that the same could be consequent to/possible in an assault. What do you have to say?
Answer: I or any of my brother had not caused any injury and Sh. Narayan Dass the husband of our bua, when we saw was running behind her in the intoxication of liquor and she fell down then after that we reached there and protected her.
*** *** *** Q. 54: Why was this case registered against you? Answer: The Narayan Dass was responsible for falling down the deceased Yoshada and he told wrongly to his son Gopal at his arrival and all other witnesses were making the statements at the instance of the Gopal family. The Gopal and his father was / is residing in our house and wanted to safe there possession in the said house by implicating us and forcing us to make a compromise at the terms and conditions of the Gopal and his family. Q. 55: Why have the PWs deposed against you? Answer: The PWs of the family of Gopal lead evidence at the instance of Gopal and police officals stated as wrongly told to them.
Q. 56: Do you want to lead any evidence in your defence?
Answer: Yes.
Q. 57: Do you want to say anything else?
Answer: Nothing..."
(Emphasis supplied) 9.2. Congruently, in his statement, recorded in terms of the provisions under Section 313 Cr.P.C. on 19.04.2024, accused Ishwar, while denying his involvement in the present case, inter alia proclaimed as under;
"Q. 1: It is in evidence against you that PW-1/Sh. Gopal has deposed that he was residing at H.No. 17, Old Chandrawal, Civil Lines, Delhi-110054 and running a private job at relevant point in time. It is further in evidence that on 05.06.2014 at about 08:45 p.m., he/PW-1 reached his house. It is further in evidence that as per PW-1, his/PW-1's parents along with other family members were present at the house and at that time, his/PW-1's father was under the influence of liquor and he was quarrelling with his/PW-1's mother and was abusing. What do you SC No. 204/2017 State v. Ishwar & Ors. Page 16 of 60 have to say?
Answer: Gopal was not present at site, he came in hospital unless MLC was made. I had no dispute with PW-1. Veeru has not present at the site. It is correct that PW-1 was under the influence of liquor and he was beating to his wife and when she came out she fell down at that time I was outside my house and I ran to protect her and tried to safe her from Narayan Dass / PW-1. The sister of Gopal made a call at PCR and police had taken to Smt. Jashoda (deceased) to hospital.
Q. 2: It is in evidence against you that PW-1/Sh. Gopal has deposed that accused, Ishwar, Manoj and Veeru, who were all correctly identified by PW-1 in Court on the day of his deposition, came there/at his house and they/the said accused persons started quarrelling with his/PW-1's father. It is further in evidence that as per PW-1 when he/PW-1 reached on the first floor of the house, they/the accused persons started quarrelling with his/PW-1's father. It is further in evidence that as per PW-1, the mother and sister of accused persons were also present in the room. What do you have to say?
Answer: Gopal had made false statement to implicate us in the present false case as he was not presonally present and facts were told to him wrongly by his father (Sh. Narayan Dass), they are living in our house and they wanted to implicate us and make settlement in their own way and for that also Gopal made the statement.
Q. 3: It is in evidence against you that PW-1/Sh. Gopal has deposed that when he/PW-1 intervened in the quarrel, accused Manoj and Veeru started quarrelling with him/PW-1. It is further in evidence that as per PW-1, in the meantime, Smt. Yashoda came and tried to stop the quarrel. It is further in evidence that as per PW-1, accused Ishwar gave a slap to his/PW-1's mother Smt. Yashoda and accused Manoj and Veeru pushed his/PW-1's mother. It is further in evidence that as per PW-1, his/PW-1's mother fell down and became unconscious. What do you have to say?
Answer: It is wrong that anyone either me or my brothers slept Yashoda. Gopal has made false statement. Veeru was not present even he came later on because he is a government servent and Gopal wanted to get him suspended from the government job. Smt. Yashoda had fallen down herself as her husband under liquor was following her and she ran SC No. 204/2017 State v. Ishwar & Ors. Page 17 of 60 outside the house to protect herself.
*** *** *** Q. 8: It is in evidence against you that PW-2/Dr. Leela Pant has deposed that after examination of the exhibits, they found that tissue taken from left anterior descending artery along with attached fat showed two arteries showing atherosclerotic changes with calcification, occluding 40% and 75% of lumen in both, respectively. It is further in evidence that as per PW-2, tissue taken from left circumflex artery with attached fat showed an artery showing atherosclerotic changes with calcification, occluding 60% of lumen. It is further in evidence that as per PW-2, tissue taken from the right coronary artery with attached fat showed two arteries showing atherosclerotic changes with calcification, occluding more than 80% of lumen in both. It is further in evidence that as per PW-2, multiple areas of fibrosis in left ventricular wall noted. It is further in evidence that as per PW-2, tissue from aorta showed atheromatous changes with calcification. It is further in evidence that as per PW-2, tissue from three tiny lymph nodes showed reactive change with congestion and anthracotic pigment. What do you have to say? Answer: I cannot say, however Smt. Yashoda was my bua and she was suffering from heart problem and several other diseases and her opertaion was already made, I do not have any complaint with my bua.
*** *** *** Q. 54: Why was this case registered against you? Answer: The Narayan Dass was responsible for falling down the deceased Yoshada and he told wrongly to his son Gopal at his arrival and all other witnesses were making the statements at the instance of the Gopal family. The Gopal and his father was / is residing in our house and wanted to safe there possession in the said house by implicating us and forcing us to make a compromise at the terms and conditions of the Gopal and his family. Q. 55: Why have the PWs deposed against you? Answer: The PWs of the family of Gopal lead evidence at the instance of Gopal and police officals stated as wrongly told to them.
Q. 56: Do you want to lead any evidence in your defence?
Answer: Yes.
Q. 57: Do you want to say anything else?
Answer: Nothing..."SC No. 204/2017 State v. Ishwar & Ors. Page 18 of 60
(Emphasis supplied) 9.3. As aforenoted, both the accused persons, in their respective statements, recorded under Section 313 Cr.P.C., desired to lead evidence/defence evidence. Consequently, DW-1/Pradeep Kumar was adduced by the accused persons in support of their cause. Needless to mention that DW-1 was thoroughly cross examined by/on behalf of the prosecution/Ld. Addl. PP for the State. It was submitted on behalf of the accused persons that they did not desire to lead any further evidence. Consequently, DE was closed on 03.12.2024.
CONTENTIONS OF STATE:
10. Ld. Addl. PP for the State outrightly submitted that from the material placed on record and, in particular, from the testimony of PW-1/complainant/ Gopal and the eyewitness /PW-9/Laxman Rohit, the role, complicity as well as active involvement of the accused persons in the commission of the offences alleged against them stand proved. As per the Ld. Addl. PP for the State, the complainant/PW-1 and the eyewitness/PW-9, in their respective testimonies have specifically deposed about the commission of incident by the accused persons, besides, Ld. Addl. PP for the State asserted that the said witnesses/complainant and eyewitness have been consistent in their depositions before the court as well as their earlier avowals before the police officials in so far as the role of the said accused persons is concerned. Further, as per Ld. Addl. PP for the State, the said witnesses have withstood the rigors of cross-examination on behalf of the accused persons wherein, nothing has come forth to belie their consistent version against accused persons. Ld. Addl. PP for the State further asserted that the version of incident, deposed by PW-1 and PW-9, finds SC No. 204/2017 State v. Ishwar & Ors. Page 19 of 60 credence from the deposition of PW-2/Dr. Leela Pant, PW-4/Dr. Ruchita, and PW-6/Dr. S. Lal, as well as the MLC, postmortem record, subsequent opinion of the concerned doctor and other medical as well as forensic documents of the deceased. Correspondingly, Ld. Addl. PP for the State asserted that in their statements under Section 313 Cr.P.C, the accused persons merely/blatantly denied the allegations against them, without offering any explanation to their conduct, disentitling them to claim any indulgence in the present case. Accordingly, Ld. Addl. PP for the State reiterated that from the material, evidence and documents, placed on record the charges levelled against the accused persons stand duly proved, making them liable for the offences/charges levelled against them.
CONTENTIONS OF DEFENCE:
11. Per contra Ld. Counsel for the accused persons submitted that from the material placed on record, the ingredients of no offence, leave aside the offence(s)/charge(s) under Sections 304/34 IPC, are made out against the accused persons in the instant case. In this regard, Ld. Counsel vehemently asserted that there are material improvements, contradictions and variations in the statements of various prosecution witnesses, including that of the complainant/PW-1 and 'so called' eyewitness/PW-9, belying the allegations against the accused persons. Correspondingly, Ld. Counsel for the accused persons strenuously argued that all the witnesses, brought forth by the prosecution have failed to support the case against the accused persons. Ld. Counsel further argued that the accused persons have been falsely implicated in the present case, owing to the fact that the husband and son of the deceased, were residing in the house of the accused persons and SC No. 204/2017 State v. Ishwar & Ors. Page 20 of 60 they desired to continue with such possession. In fact, as per the Ld. Counsel, demise of the complainant's mother was occasioned due to the fact that the complainant's father was drunk and he had shoved her on stairs, leading to her death. Further, as per the Ld. Counsel, except for PW-1 and PW-9, who have been produced as 'so called' eyewitnesses to the alleged incident, there are no other witnesses/eyewitness to the alleged incident in question or attributing specific role qua the accused persons. Even otherwise, Ld. Counsel vehemently reiterated that the said witnesses have not supported the case of the prosecution and rendered themselves utterly and completely unreliable so as to form the basis of accused persons' conviction. Ld. Counsel further reiterated that from the material placed on record, even the basic ingredients of the ofences under Section 340/34 IPC, are not made out/established in the instant case. Further, it was vehemently argued by the Ld. Counsel for the accused persons that the investigation in the present case has not been properly conducted as neither an endeavour made to join any independent witnesses nor attempt made to retrieve any CCTV footage, etc., of the vicinity of the alleged place of occurrence. Accordingly, in view of the foregoing submissions, Ld. Counsel submitted that the accused persons be permitted, benefit of doubt and consequently, acquitted of the charges levelled against them.
APPEARANCE:
12. The arguments of Ld. Addl. PP for the State and that of Ld. Counsel for the accused persons have been heard as well as the record(s), including the testimonies of various witnesses, document(s)/material/evidence placed on record (oral and documentary evidence), thoroughly perused.
SC No. 204/2017 State v. Ishwar & Ors. Page 21 of 60LEGAL PROVISIONS:
13. Before proceeding with the determination of the rival contentions of the parties, this Court deems it prudent to reproduce the provisions under law/IPC, relevant for the purpose(s) of present adjudication, as under;
"34. Acts done by several persons in furtherance of common intention-When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
*** *** ***
299. Culpable homicide-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Explanation 1-A person who causes bodily injury, to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.*** *** *** ***
304. Punishment for culpable homicide not amounting to murder-Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death..."
(Emphasis supplied)
14. Notably, from a perusal of the aforesaid, it is outrightly observed that the provisions under Section 34 IPC SC No. 204/2017 State v. Ishwar & Ors. Page 22 of 60 recognize the principle of vicarious liability1 in criminal jurisprudence, attracting culpability against a person for an act/offence, not committed by him but by another person with whom he shared the common intention. It is trite law2 that Section 34 IPC does not provide for a substantive offence, rather, envisages culpability on the part of an accused only upon the proof of two conditions, i.e., "the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime." Quite evidently3, mere common intention on the part of any such accused, per se may not attract the provisions under Section 34 IPC, sans an action in furtherance thereof. Strikingly, the Hon'ble Supreme Court in Ram Naresh v. State of U.P., (2024) 1 SCC 443, while explicating the contours of the provisions under Section 34 IPC inter alia remarked as under;
"7. A reading of Section 34 IPC reveals that when a criminal act is done by several persons with a common intention each of the person is liable for that act as it has been done by him alone. Therefore, where participation of the accused in a crime is proved and the common intention is also established, Section 34IPC would come into play. To attract Section 34IPC, it is not necessary that there must be a prior conspiracy or premeditated mind. The common intention can be formed even in the course of the incident i.e. during the occurrence of the crime.
*** *** ***
11. Assistance has been taken of para 26 of the decision of this Court in Krishnamurthy v. State of Karnataka [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri) 192], which is reproduced herein below: (SCC p. 537) "26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention 1 Suresh v. State of U.P., (2001) 3 SCC 673.2
Virendra Singh v. State of M.P., (2010) 8 SCC 407.
3Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545.
SC No. 204/2017 State v. Ishwar & Ors. Page 23 of 60between the co-perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34IPC are satisfied. We must remember that Section 34IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants."
12. A plain reading of the above paragraph of Krishnamurthy case [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri) 192] reveals that for applying Section 34IPC there should be a common intention of all the co-accused persons which means community of purpose and common design. Common intention does not mean that the co-accused persons should have engaged in any discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. Common intention is a psychological fact and it can be formed a minute before the actual happening of the SC No. 204/2017 State v. Ishwar & Ors. Page 24 of 60 incidence or as stated earlier even during the occurrence of the incidence."
(Emphasis supplied)
15. Markedly, from the above, it is noted that in the instances where the provisions under Section 34 IPC are proposed to be invoked by the prosecution against accused persons, it is not mandatory to demonstrate that there such persons engaged in any prior discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. On the contrary, common intention may be formed at a spur of moment, even during the commission/occurrence of incident, which is to be discernible from the facts of circumstances of each case. Correspondingly, it is also a settled law that for proving formation of common intention by accused persons, direct evidence may seldomly be available, yet, in order to attract the provisions under Section 34 IPC, prosecution is under a bounden duty to prove that the participants had shared a common intention4. Reference, in regard the foregoing is further made to the decision in Virendra Singh v. State of M.P., (2010) 8 SCC 407, wherein the Hon'ble Supreme Court, elucidated as under;
"38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.
39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time 4 Hon'ble High Court of Kerala in Khalid B.A. v. State of Kerala, 2021 SCC Online Ker 11875 , in this regard, remarked; "72. It is settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances." (Emphasis supplied) SC No. 204/2017 State v. Ishwar & Ors. Page 25 of 60 to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under Section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinised by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent.
40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.
*** *** ***
42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34."
(Emphasis supplied)
16. In so far as accountability under Section 299/304 IPC is concerned, the prosecution is inter alia required to prove; '(i) death of a person; (ii) such death must have been caused by the act of another person/accused; (iii) the act by which death resulted must have been caused either with; (a) an intention of causing SC No. 204/2017 State v. Ishwar & Ors. Page 26 of 60 death; or (b) of intention of causing bodily injury, as is likely to cause death; or (c) with the knowledge that such an act is likely to cause death.'. Reference in this regard is made to the decision of the Hon'ble Supreme Court in Tularam v. State of M.P., (2018) 7 SCC 777, wherein the Hon'ble Court, noted in an akin context, as under;
"7. Section 299 IPC explains culpable homicide as causing death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that the act complained of is likely to cause death. The first two categories require the intention to cause death or the likelihood of causing death while the third category confines itself to the knowledge that the act complained of is likely to cause death..."
(Emphasis supplied)
17. Germane to note in respect of the foregoing that in the cases where occurrence of homicide is proved 5, courts are, then, required to determine whether such homicide would be covered within the ambit of Section 299 IPC, as culpable homicide or whether the same would amount to the offence of murder, as specified/defined under Section 300 IPC, punishable under Section 302 IPC. Needless to note in this regard that the superior courts have persistently avowed in the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. Apposite in this regard to make a reference to the decision in State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382, wherein the Hon'ble Apex Court, iterated with unambiguity, as under;
"12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose 5 Chunni Bai v. State of Chhattisgarh, 2025 SCC OnLine SC 955.SC No. 204/2017 State v. Ishwar & Ors. Page 27 of 60
of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. 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 homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
*** *** ***
21. From the above conspectus, it emerges that whenever 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 question 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 connection 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 operation of Section 300 of the Penal Code, is reached. This 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 "culpable homicide not amounting to murder", punishable under 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", punishable under the first part of Section 304, of the Penal Code..."
(Emphasis supplied)
18. Here, this Court deems it further pertinent to make a reference to the decision of the Hon'ble Supreme Court in Anbazhagan v. State, 2023 SCC Online SC 857, wherein the SC No. 204/2017 State v. Ishwar & Ors. Page 28 of 60 Hon'ble Court, while carrying out an exhaustive review of the provisions and judicial precedents determining culpability under the provisions under Sections 299/304 IPC or that under Sections 300/302 IPC, summarized, as under;
"66. 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 Section 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 instantaneously. 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 Section 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 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 Section 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 enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section SC No. 204/2017 State v. Ishwar & Ors. Page 29 of 60 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge 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 person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable 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 intention,' 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 injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3 rdly 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 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 Section 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 SC No. 204/2017 State v. Ishwar & Ors. Page 30 of 60 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 distinguished from more 'possibly'. When chances of happening are even or greater than its 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 homicide 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 required 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 Section 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 described 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 direct 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 injury, degree of force used in causing the injury, the manner 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 SC No. 204/2017 State v. Ishwar & Ors. Page 31 of 60 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 principle, can be drawn that the accused did not have the intention 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 sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden 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..."
(Emphasis supplied)
19. Correspondingly, the Hon'ble Supreme Court in Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444, explicated the divergence of culpability under Sections 299/304 IPC and Sections 300/302 IPC, and the manner of ascertaining 'intention' in a given case, noted as under;
"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 insignificant 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 motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There SC No. 204/2017 State v. Ishwar & Ors. Page 32 of 60 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 attempts 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 converted 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 carried 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 sudden 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 sudden provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue 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 intention. Be that as it may."
(Emphasis supplied) APPRECIATION OF EVIDENCE:
20. Therefore, being wary of the aforenoted legal principles, judicial dictates and the rival contentions of the Ld. Addl. PP for the State as well as that of Ld. Counsel for the accused, this Court would proceed with the determination of the merits of the instant case. In particular and outrightly to the effect as to, 'whether from the material placed on record, culpability under Section 304/34 IPC can be attracted against the accused persons in the instant case?' In this regard, this Court outrightly SC No. 204/2017 State v. Ishwar & Ors. Page 33 of 60 notes that the case of the prosecution against the accused parsons, is primarily based on the depositions of PW-1/complainant/Gopal and that of PW-9/Laxman Rohit. Appositely, PW-1/ Gopal asserted in his deposition that on 05.06.2014, at about 08:45 p.m., he reached his house and his parents along with other family members were present at the house. At that time, as per PW-1, his father was under the influence of liquor and, was quarrelling with his/PW-1's mother as well as abusing. Correspondingly, as per PW-1, accused persons, namely, Ishwar, Manoj and Veeru, who PW-1's cousins and were correctly identified by PW-1 before this Court, reached there and started quarrelling with PW-1's father. It was further testified by PW-1 that when he reached on the first floor of the house, the accused persons started quarrelling with his/PW-1's father. As per PW-1, the mother and sister of the accused persons were also present in the said room and when he/PW-1 intervened in the quarrel, Manoj and Veeru started quarrelling with him. In the meantime, as per PW-1, Smt. Yashoda reached there and tried to stop the quarrel, however, accused Ishwar gave a slap to his/PW-1's mother and accused persons, namely, Manoj and Veeru pushed her/PW-1's mother. Consequently, as per PW-1, his/PW-1's mother fell down and became unconscious and he/PW-1 made a call at 100 number. Further, as per PW-1, PCR van reached there and his mother was taken to Aruna Asaf Ali Hospital, where she was declared dead by the Doctors. Congruently, as per PW-1, his mother had expired/left for heavenly abode on the spot. PW-1 further avowed that after some time, police reached and his statement (Ex. PW1/A) was recorded and he was called in the police post. On the following day, as per PW-1, police reached at his house and he SC No. 204/2017 State v. Ishwar & Ors. Page 34 of 60 showed the police, spot of occurrence to the police. PW-1 further deposed that he and his father, identified the dead body of his/PW-1's mother vide memos Ex. PW1/B and PW1/C, which was handed over to PW-1 vide memo Ex. PW1/D. It was further testified by PW-1 that the accused persons were arrested and sent to custody. However, as per PW-1, upon being released on bail, the accused persons, extended threats to him/PW-1 against which, he/PW-1 registered a complaint (Mark PW1/1 and PW1/2) to the concerned authorities.
21. Markedly, upon being cross examined by/on behalf of the accused persons, PW-1, proclaimed as under;
"XXXXXX by Sh. ***, Ld. Counsel for accused Ishwar, Manoj Kumar and Veeru.
I am working on a shop of selling of purse in Nabi Karim. I used to reach my workplace at 10:00 am and return home till 08:30 pm - 08:45 pm. Sometimes it becomes late i.e. 10:00 pm to 10:30 pm depending upon the work. On 05.06.2016, I have reached home at about 08:30 pm. At the time of incidence, I was present outside the house at the place of occurrence. When I came down, I saw that accused persons were holding my mother and after my reaching to the ground floor, accused Manoj and Veeru pushed my mother. I was standing two steps ahead the door of my house in the Gali. At that time, my mother was standing at a distance of 3 feet from me. I did not tell that I was out of our house, nor police officials enquired from me. I had told the police in my statement that my father was abusing to my mother. (Confronted with statement Ex.PW1/A where abusing the mother by the father is not mentioned, whatever is mentioned is that my father was abusing under the influence of liquor). My house and the house of the accused persons have different municipal number but the staircase is common. The abovesaid house was given by my maternal grandfather to my mother to live. It is correct that the accused persons are my real maternal cousins and grandsons of my maternal grandfather. I do not know on which issue my father was abusing to my mother on that day as when I reached home he was abusing her. It was about 09:00pm when accused persons came there.SC No. 204/2017 State v. Ishwar & Ors. Page 35 of 60
My mother was taken to the hospital by my two cousins in PCR Van. I did not accompany them at that time. I reached the hospital at about 09:45 pm - 10:00pm before that my cousins had told me on telephone that my mother had been declared dead. I do not remember the time of receiving the call however I had received the same 15 minutes prior to reaching the hospital. I do not know if police had recorded the statement of my said two cousins who took my mother to the hospital. Vol. When I went for registration of FIR, both the said cousins were with me. Again said, one cousin had gone to his house and only one cousin was with me. Police had recorded the statement of my cousins. I do not know the distance between my house and the hospital however at a distance of 15 minutes by normal drive. I had made a call on 100 number after 5-7 minutes of felling down of my mother. My mother was suffering with blood pressure and sugar disease. She had undergone a surgery of sist in gallbladder. 2-3 more surgeries were done on her prior to that surgery also. She was not suffering with any heart disease.
My statement was recorded on the same night at 11:00 pm in Police Post Majnu ka Tila. One of my cousin was with me at that time. My father was not present there. I do not remember as to how many papers were signed by me. However, I appended my signatures on the papers which were asked by the police to sign. I cannot tell that on how many papers my signatures were taken by the police. Two police officials were present in the room where IO was sitting. The entire incident was narrated only by me. My cousin did not tell anything during my statement. My statement was read over to me. My father was not present at the time of incident in the Gali and when quarrel took place with me. My mother was pushed from front. I did not see in which direction she fell whether towards our house or the house of my maternal uncle. Many persons had gathered at that time but none of them intervened. I do not remember if I had told the names of those persons to the police or not. I do not know if the police had enquired from the area persons gathered there. Before that incident also, 2-3 times quarrel had taken place between me and the accused persons. I am not having any police report qua those quarrels. Unless the police came, I had brought my mother inside the house. When police came my mother was in the house. I do not remember the number of police officials. That she was not pushed by any of the accused persons or that no slap was given to her by any accused. It is wrong to suggest SC No. 204/2017 State v. Ishwar & Ors. Page 36 of 60 that she was pushed back by my father and in order to grab the house of the accused persons we have made the present false report to implicate the accused persons falsely. Police did not get myself or my father medically examined. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
22. Correspondingly, reference is made to the deposition of PW-9/Sh. Laxman Rohit, who testified that on 05.05.2014, he was present at the house of his uncle, namely, Shri. Narain Dass, at 17, Old Chandrawal, Civil Lines, Delhi. Further, as per PW-9, at around 09:00 p.m., he was sitting, after consuming his meal and after some time, his/PW-9's cousin, namely, Gopal came to the house. Correspondingly, as per PW-9, he suddenly heard the noise of quarrel and he/PW-9 along with Gopal and Gopal's mother, namely, Smt. Yashoda went to the first floor of the said house, where he/PW-9 saw that accused Ishwar, Manoj and Veeru, who were correctly identified by PW-9 in Court, were quarrelling with my Shri Narain Dass. PW-9 further proclaimed that he tried to intervene in the quarrel, however, the accused persons were very annoyed. Further, as per PW-9, in the meanwhile, mother of the accused persons also reached there on hearing noise of quarrel. PW-9 further avowed that he asked them to come downstairs as the room in which quarrel was going on was very small and his/PW-9's uncle Narain Dass was suffering with Asthma. PW-9 further asserted that he asked the accused persons to talk on the ground floor of the house, whereupon, all of them reached at the ground floor. However, as per PW-9, the accused persons continued quarrelling with them, as well as they/accused persons hurled abuses at Gopal and his brother and also gave beatings to them. It was further testified by PW-9 that accused Ishwar gave a slap on Smt. Yashoda's face and that accused, SC No. 204/2017 State v. Ishwar & Ors. Page 37 of 60 Manoj, who was also quarrelling with Gopal, suddenly, pushed Smt. Yashoda due to which she fell down. As per PW-9, they called at 100 number, whereupon, PCR van reached at the spot and shifted Smt. Yashoda to Aruna Asaf Ali Hospital. PW-9 further deposed that in the Hospital, Smt. Yashoda was declared dead by the Doctors. As per PW-9, at that time, IO did not record his/PW-9's statement and that his/PW-9's statement was only recorded after around, two years of the incident. Markedly, during the course of his deposition, upon being led by Ld. Addl. PP for the State, PW-9 affirmed that the incident had taken place on 05.06.2014 and that accused persons, namely, Manoj and Veeru had both pushed Smt. Yashoda.
23. Here, this Court deems it pertinent to further reproduce the cross examination of PW-9/Laxman Rohit, as under;
"XXXXXX by Shri ***, Ld. Counsel for all the accused persons namely Ishwar, Manoj Kumar and Veeru.
I had gone to the house of deceased Yashoda on 05.06.2014 in the morning at about 10 AM. I remained in the house of Gopal for about 3-4 days. I went to the hospital along with PCR officials. My statement was not recorded in the hospital. The statement of no witness was recorded in the hospital by the IO. After the incident public persons gathered in the gali. I do not know whether statement of any of them was recorded by the IO. My uncle Narain Dass was hurling abuses at his wife on the first floor of the house. Smt. Yashoda was stopping accused persons when they were beating Narain Dass. Accused persons are nephew of deceased Yashoda. Narain Dass used to abuse deceased Yashoda after consuming liquor. When Narain Dass was abusing his wife complainant Gopal was present in the house at ground floor along with me. Shri Narain Dass was hurling abuses at deceased Smt Yashoda on the first floor. My statement was recorded after about two years. At that time I was residing at Tendu Khera, District Damoh, M.P. Police did not take my signatures when my statement was recorded. Police SC No. 204/2017 State v. Ishwar & Ors. Page 38 of 60 has not taken my signatures on even a single paper. Police had read over my statement to me. Police asked me to leave after reading over my statement. I do not remember that what type of clothes Shri Narain Dass was wearing, whether it was a kurta pyjama or pant shirt etc. nor can I tell the colour of his dress. I also do not remember exactly what colour of saree Smt. Yashoda/deceased was wearing. I have not seen the registration number of the PCR Van which had taken Smt. Yashoda to hospital. There were three police officers in the PCR van. Incident took place at about 9 PM and PCR van had came within 10-15 minutes. I did not see the time when we reached the hospital. Gopal was not present with me in the PCR van. It is correct that Gopal is my cousin. Public persons did not ask me what had happened. I do not know the names of the public persons. Maternal uncle of Gopal had come to the hospital and he was pursuing Gopal not to lodge FIR. When maternal uncle of Gopal came to the hospital only one police officer was present there. I do not remember the name of said police officer. The police officer did not inquire the name and address of maternal uncle of Gopal. Vol: "The maternal uncle had talked to Gopal after coming out of the hospital and not in the presence of said police officer."
It is wrong to suggest that I am deposing falsely at the instance of Gopal being his relative. It is further wrong to suggest that I have not seen the incident. It is further wrong to suggest that accused persons had come to help deceased Yashoda whom Shri Narain Dass was beating and it is also wrong to suggest that aforesaid accused persons had not hit Smt. Yashoda."
(Emphasis supplied)
24. Conspicuously, from a conscientious perusal of the material on record, it is noted that except the aforenoted witnesses, i.e., PW-1/complainant/Gopal and PW-9/Laxman Rohit, prosecution has not adduced any other witness(es)/eyewitnesses to the alleged incident in question. Ergo, under such circumstances, the question that falls for consideration before this Court at this stage is, ' whether the conviction of the accused persons can be premised on the testimonies of the said witnesses/PW-1 and PW-9, alone?' In this regard, this Court deems it pertinent to note that it is mindful of the repeated SC No. 204/2017 State v. Ishwar & Ors. Page 39 of 60 avowals6 of the superior courts inter alia to the effect that there is no bar/legal impediment in convicting a person even on the basis of testimony of a sole/single witness/sole eyewitness, if the version so put forth by such a witness is clear and reliable. Unquestionably, reason behind the same is that the evidence, 'has to be weighed and not counted'. In fact, the Hon'ble Supreme Court in Sunil Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367, unambiguously noted in this regard, as under;
"9. ...Vadivelu Thevar case [AIR 1957 SC 614:
1957 Cri LJ 1000] was referred to with approval in the case of Jagdish Prasad v. State of M.P. [1995 SCC (Cri) 160: AIR 1994 SC 1251] This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness.
That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise..."
(Emphasis supplied)
25. Quite evidently, it is seen from the above that a conviction of an accused can be premised on the testimony, even of a single/sole witness. However, the same is permissible only where such a testimony is of 'sterling7' quality, so as to be able to be relied upon, without any corroboration. Notably, the term(s), 'sterling witness'/'sterling testimony' in criminal jurisprudence has been repeatedly declared by superior courts to mean a witness 6 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
7Bhimapa Chandapa Hosamani & Ors. v. State of Karnataka, (2006) 11 SCC 323.
SC No. 204/2017 State v. Ishwar & Ors. Page 40 of 60who is8, "worthy of credence, one who is reliable and truthful." Reference in this regard is further made to the decision in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 , wherein the Hon'ble Supreme Court, catalogued the quality of a ' sterling witness', under the following observations;
"22. ...In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give 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 co-relation 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 every 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 8 Kuriya v. State of Rajasthan, (2012) 10 SCC 433.SC No. 204/2017 State v. Ishwar & Ors. Page 41 of 60
should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged..."
(Emphasis supplied)
26. Consequently, being wary of the aforenoted principles, when the material/evidence placed on record is conscientiously evaluated, this Court unwaveringly reaches a conclusion that the testimonies of PW-1/complainant/Gopal or that of PW-9/Laxman Rohit are far from being termed as 'sterling' in nature, so as to form the basis of conviction of the accused persons in the instant case. In this regard, this Court deems it apposite to outrightly note/reiterate that PW-1 deposed during the course of his examination-in-chief that when he reached on the first floor of the house, the accused persons started quarrelling with his/PW-1's father. Correspondingly, as per PW-1 when he/PW-1 intervened in the quarrel, Manoj and Veeru started quarrelling with him and in the meantime, as per PW-1, Smt. Yashoda reached there and tried to stop the quarrel, however, accused Ishwar gave a slap to his/PW-1's mother and accused persons, namely, Manoj and Veeru pushed her/PW-1's mother. Consequently, as per PW-1, his/PW-1's mother fell down and became unconscious. However, as aforenoted, during the course of his cross-examination, PW-1 inter alia asserted that when he came down, he saw that accused persons were holding his mother and after his/PW-1's reaching at the ground floor, accused Manoj and Veeru pushed his mother, which was witnessed by him while he was standing two steps ahead the door of his house in the gali. Congruently, PW-1 went ahead to avow during the course of his cross-examination that his father was not present at the time of SC No. 204/2017 State v. Ishwar & Ors. Page 42 of 60 incident in the gali, when quarrel took place with him. Quite lucidly, it is seen from a scrupulous analysis of the foregoing that there is an apparent incongruity in the versions of the incident, as deposed by PW-1 as well as in respect of the alleged place of occurrence. Pertinent to further note that from a punctilious perusal of the depositions of PW-1 and PW-9, several material inconsistencies, in the version of alleged occurrence are also observable, as hereinunder noted, casting a sizeable dent in the version put forth by the prosecution against the accused persons.
27. As aforenoted, while, PW-1 nowhere asserted during the course of his examination in chief that the incident occurred at first floor of his house as well as in the gali/street and the ground floor of his house, however, during the course of his cross-examination, PW-1 asserted that the alleged incident of pushing of the deceased by accused Manoj and Veeru, occurred on the ground floor, which he witnessed while he was two steps ahead of the door of his house in the gali. Correspondingly, while PW-1 asserted during his examination in chief that the accused persons started quarreling with him when he intervened, as they/accused persons were quarreling with his father on the first floor of his house. However, as aforenoted, PW-1 deposed during his cross examination that his father was not present at the time of incident in the gali/street, when a quarrel took place with him. Needless to mention that PW-1 nowhere explained the reason as to why such a quarrel ensued between him and the accused persons in the gali, contrary to his earlier version that the quarrel had ensued between him and the accused persons, as he had intervened in the quarrel between his/PW-1's father and the accused persons, at the first floor of his house. Congruently, PW-1 failed to tender any SC No. 204/2017 State v. Ishwar & Ors. Page 43 of 60 explanation as to how suddenly the quarrel shifted from the first floor of his house to the gali, especially when no such distinction was forthcoming under the examination in chief of the complainant/PW-1.
28. Correspondingly and quite ominously, while PW-1 deposed in his examination in chief, that Smt. Yashoda was slapped by accused Ishwar and pushed by accused persons, Manoj and Veeru as she tried to intervene in the quarrel, which had ensued between his father and the accused persons at the first floor of his house in which, he/PW-1 had also intervened. However, PW-1 avowed during his cross-examination that when he came down, he saw that accused persons were holding his mother and after his/PW-1's reaching at the ground floor, accused Manoj and Veeru pushed his mother. Clearly, PW-1 again failed to explicate in his evidence as to how the quarrel shifted from the first floor of his house to the ground floor and even omitted to explain as to whether he had witnessed the alleged incident, after he returned from his work, as deposed by him during his examination in chief or whether he was already present inside the house, when the alleged incident of quarrel had ensued on the ground floor. Needless to mention, nowhere under his cross examination, PW-1 tendered any explanation under as to whether his father was, in fact, present in the gali or on the ground floor, when he/PW-1 allegedly came down and saw that accused persons were holding his mother and after his/PW-1's reaching at the ground floor, accused Manoj and Veeru pushed his mother. In fact, the testimony of the complainant/PW-1 becomes further uninspiring, considering that PW-1 deposed that the deceased had lost her consciousness upon being allegedly pushed by Manoj and Veeru.
SC No. 204/2017 State v. Ishwar & Ors. Page 44 of 60Ergo, under such circumstances, the occasion of complainant's fight in the gali with the accused persons, as asserted by him during his cross-examination, is unexplained and does not, even in the considered opinion of this Court, fall into the sequence of events as deposed by PW-1 in his examination in chief. Quite lucidly, it is not the case of the complainant that the quarrel in gali ensued between him and the accused persons, subsequent to the fall of his mother/the deceased on the ground floor, upon being allegedly pushed by accused Manoj and Veeru. However, presuming for the sake of argument that such a quarrel between him and the accused persons had occasioned prior to deceased's fall, PW-1 failed to explain as to where he had, 'come down from' before he saw the accused persons push his mother/the deceased, in the aforenoted manner. Correspondingly, in the considered opinion of this Court, the feeble attempt of the complainant to sidestep the presence of his father/Sh. Narayan Dass in the gali at the time of alleged quarrel between him and the accused persons, in the considered opinion of this Court, accentuates the inconsistencies in the version put forth by the said witness.
29. In so far as the deposition of PW-9/Sh. Laxman Rohit is concerned, same too, in the considered opinion of this Court, is not rousing confidence so as to form the basis of accused persons' conviction. In this regard, it is outrightly noted that nowhere during the course of his deposition, PW-1 proclaimed of the presence of PW-9/Sh. Laxman Rohit at the alleged scene of occurrence or him/PW-9's having witnessed the same. In particular, as aforenoted, PW-9 asserted in his examination in chief that he along with the complainant/PW-1 went to the first floor of the house bearing; 17, Old Chandrawal, Civil Lines, Delhi, SC No. 204/2017 State v. Ishwar & Ors. Page 45 of 60 where quarrel was allegedly ongoing between Sh. Narain Dass, his wife as well as the accused persons. However, nowhere under his deposition, PW-1 avowed of PW-9's accompanying him to the first floor of his house or that of even his/PW-9's presence at the said floor at the time of alleged occurrence. Congruently, whilst, PW-9 proclaimed under his examination in chief that he asked everyone to reach at ground floor of the said house, as Sh. Narain Dass was an Asthma patient, however, no such assertion is forthcoming in the deposition of PW-1. On the contrary, as aforenoted, PW-1 failed to explicate the incongruity in his deposition, i.e., in his examination in chief vis-à-vis his cross examination, in respect of the place of alleged occurrence and the sequence of events, as hereinunder observed.
30. Pertinent to further observe that though, PW-9 proclaimed during the course of his examination in chief that the accused persons continued quarrelling and they hurled abuses at Gopal and his brother as well as gave beatings to them. However, no such declaration regarding the presence of Gopal's brother or of the accused persons' hurling abuse at Gopal and his brother or that of the accused persons' beating Gopal or his brother is forthcoming under the deposition of the complainant/PW-1/Gopal. Needless to further mention that nowhere under his deposition, PW-9 named the said brother of Gopal, who was allegedly being abused and beaten up by the accused persons, besides, no medical examination report, either that of the complainant or that of his father or even that of his said brother, who was allegedly beaten and abused by the accused persons is forthcoming on record. In fact, as aforenoted, PW-1 affirmed during the course of his cross examination that the police did not get him/PW-1 or his father, SC No. 204/2017 State v. Ishwar & Ors. Page 46 of 60 medically examined. Congruently, PW-5/SI Laxman Kumar affirmed that he did not get the medical examination of Sh. Narayan Dass, husband of the deceased conducted. Needless to mention that nowhere under his deposition, PW-21/IO/Insp. Kamal Kishor deposed regarding him getting either the complainant or his father or any other person in the family of the deceased, medically examined in relation to the present case/dispute.
31. Here, it is further pertinent to note that as aforenoted, PW-9 deposed that upon him asking, all the persons, who were present at the first floor of the house of the complainant reached at the ground floor, whereupon the quarrel continued between the accused persons and Gopal and his brother, in the meanwhile, Ishwar slapped the deceased, while Manoj and Veeru (as asserted by PW-9 upon being led by Ld. Addl. PP for the State) pushed her/the deceased due to which she fell. However, the said version of incident, does not coincide with the avowal of PW-1. In particular, nowhere under his deposition, PW-9 made a reference of presence of the complainant in the gali, outside the house at that point in time, when the incident with the deceased alleged transpired, as deposed by PW-1/complainant under his cross examination. Correspondingly, while, PW-9 asserted that on his request, everyone reached at ground floor, where the accused persons were quarrelling, hurling abuses and beating Gopal and his brother. However, as aforenoted, PW-1 specifically avowed that the incident of quarrel with him occurred in the gali and that his father was not present in the gali at that point in time. Needless to reiterate that the complainant made no reference of presence of SC No. 204/2017 State v. Ishwar & Ors. Page 47 of 60 his brother or even of PW-9/Laxman Rohit at the time when such incident allegedly occurred.
32. Germane for the purpose(s) of the present discourse to note that not only are there material variations between the deposition of PW-1 and PW-9 regarding the alleged incident in so far as they relate to the exact place of occurrence or sequence of events, rather, there are also glaring inconsistencies in the deposition of the said witnesses, when seen in conjunction with each other and the deposition other witnesses on other aspects following the alleged occurrence and during the course of investigation. In this regard, this Court deems it pertinent to outrightly note that while, PW-1/complainant deposed that his statement was recorded on the same night at that of the alleged incident at 11:00 p.m., in Police Post Majnu ka Tila and that one of his cousins was present with him at that point in time. However, PW-3/Ct. Manoj Kumar asserted in his cross-examination that the statement of the complainant was recorded by the IO in the Hospital. Correspondingly, PW-5/SI Laxman Kumar proclaimed in his testimony that he had met the complainant in the Hospital and that he had recorded his statement (Ex. PW1/A) in the Hospital itself. Similarly, PW-8/HC Sanjay deposed that the statement of Gopal, deceased's son was recorded by SI Laxman in the Hospital.
33. Congruently, PW-1 further avowed in his cross- examination that the police had recorded the statement of one of his cousins, who accompanied him for registration of FIR. However, nowhere under the deposition of any of the police officials, is there any reference of recording of statement of any of the cousins of the complainant at the time of recording of SC No. 204/2017 State v. Ishwar & Ors. Page 48 of 60 his/PW-1's statement. Needless to mention that nowhere under his deposition, PW-1 disclosed the name of such cousin. However, even presuming that PW-1 was, in fact, deposing regarding recording of PW-9's statement by the police officials, same does not align with the version of PW-9, who proclaimed both under his examination in chief as well as cross examination that his statement was recorded by the concerned police official(s) only, two years after the alleged incident. Here, it is further pertinent to note that the non-explanation of reasons for such delayed recording of statement of PW-9, as asserted by the said witness is quite distressing, especially when PW-9 asserted in his cross examination that he had gone to the complainant's house on 05.06.2014 and stayed there for around 3-4 days. Congruently, it is quite astounding that though, PW-9 asserted that he went to the Hospital along with PCR official, the reason for PW-9's not reporting the incident to the police officials, promptly and at the first instance instead of the complainant, does not appeal to the senses of this Court. Needless to mention that the same is notwithstanding the fact that the complainant admitted in his cross examination that he did not accompany the deceased to the Hospital in the PCR Van and had only subsequently, reached there upon receiving information of demise of his mother from his cousins. Ergo, under such circumstances, PW-9's not deposing of the alleged incident to the police officials in the Hospital, forthwith, is not explainable from the material brought forth. Congruently, presence of PW-9 in the Hospital along with the deceased does not find support from the MLC of the deceased (Ex. PW21/A), where the particulars of 'brought by' have been records as, 'S-10 HC Ombir 8913/PCR'. Needless to mention, PW-9 went SC No. 204/2017 State v. Ishwar & Ors. Page 49 of 60 ahead to proclaim that statement of no witness was recorded in the Hospital, contrary to avowal of PW-3/Ct. Manoj Kumar, PW-5/SI Laxman Kumar, and PW-8/HC Sanjay, who all, as aforenoted, deposed that the statement of Gopal, deceased's son was recorded by SI Laxman in the Hospital.
34. Pertinent to further note that PW-1 deposed in his cross examination that his mother was taken to the Hospital by his two cousins in PCR Van and that he/PW-1 had not accompanied them at that time. However, nowhere under his deposition, PW-1 disclosed the particulars of such cousins or even asserted that the said cousin was PW-9/Laxman Rohit, as otherwise deposed by PW-9 during his evidence. Needless to mention that the said fact, even otherwise, finds no credence from the deposition of PW-13/ASI Ombir Singh, In-charge of PCR Van. Pertinently, PW-13 deposed in his evidence that on 05.06.2014, he was posted as Head Constable at PCR North Zone and that on the said day, he was performing duty as In-Charge of PCR Van. Correspondingly, PW-13 avowed that at around 09.00 p.m., he received an information regarding quarrel at House No. 17, Gali No. 2, Old Chandrawal and that he rushed to the spot by PCR van along with his staff. PW-13 further avowed that one lady was found lying unconscious and that he shifted the said lady to Aruna Asaf Ali Hospital through PCR van. However, nowhere under his deposition, PW-13 asserted that any of the relatives of the deceased had, in fact, accompanied him to the Hospital in the said PCR van. On the contrary, upon being cross examined, PW-13 specifically proclaimed that none of the family members of the injured lady met him at the spot and that only, "... one or two persons of the locality had accompanied injured person to the SC No. 204/2017 State v. Ishwar & Ors. Page 50 of 60 hospital in PCR van...". However, PW-13 expressed inability to disclose the names and addresses of such person.
35. Needless to further mention, the version of the complainant that his cousins had accompanied the deceased to the Hospital does not find corroboration from the evidence of other witnesses. In particular, in this regard, reference is made to the deposition of PW-3/Ct. Manoj Kumar, who specifically proclaimed during the course of his cross-examination that only Gopal from the family of the deceased was present in the Hospital. Further, even PW-5/SI Laxman Kumar asserted during the course of his cross examination inter alia to the effect, "...No person except the complainant Gopal was present in the Hospital ...". Similarly, PW-8/HC Sanjay asserted during the course of his cross examination that no relative of the deceased Yashoda met him in the Hospital, except Gopal.
36. Ergo, in light of the foregoing discrepancies, omissions and lacunae in the prosecution's case/version of the complainant/PW-1 and PW-9/Laxman Rohit, in order to successful bring home guilt/elucidate the explicit role of the accused persons in the instant case, it was incumbent on the part of the prosecution to adduce other witnesses/public persons to corroborate the version of the aforesaid witnesses, especially, when it has come on record that public persons were present at the alleged spot of occurrence. However, in the instant case, not only has the prosecution failed to adduce any independent witness, rather, even genuine endeavour(s) on the part of the investigating authorities/police officials to join independent witnesses is grossly wanting. In fact, PW-21/IO/Insp. Kamal Kishor specifically proclaimed under his cross-examination that he had neither served SC No. 204/2017 State v. Ishwar & Ors. Page 51 of 60 any notice to any public person in the locality, where the incident is alleged to have taken place, nor did he/PW-21 make any enquiry(ies) from immediate neighbours of the deceased or of that of the accused persons. Congruently, PW-13/ASI Ombir Singh, PCR In-charge asserted during his cross-examination that he made no inquiry(ies) from the public persons, who were present at the spot nor did he inquire of their names and addresses. In fact, as aforenoted, it is quite distressing that the prosecution made no endeavor to even join the father of the complainant/deceased's husband as one of the witnesses to the alleged incident and with whom, the incident is alleged to have initially commenced/set forth or even other relatives of the complainant.
37. Correspondingly, despite the aforenoted incongruity regarding the alleged place of occurrence, i.e., whether the incident had transpired at the first floor of H. No. 17, Old Chandrawal, Civil Lines, Delhi or in the gali/street or on the ground floor of the said house, prosecution/IO made no endeavor to properly prove the site plan of the alleged occurrence spot. In this regard, this Court pertinent to note that though, PW-21/SI Kamal Kishor proclaimed under his deposition that he prepared the site plan (Ex. PW21/A) at the instance of complainant, however, nowhere under his deposition, PW-1 avowed that he had got prepared such site plan. In fact, PW-1 merely avowed under his examination in chief that on the day, following the date of alleged occurrence, police had reached at his house and he/PW-1 showed them the spot of occurrence. Quite evidently, nowhere under his deposition, PW-1 declared that he got prepared, site plan or that he even signed such document. Needless to mention that from a conscientious perusal of the said document/site plan (Ex.
SC No. 204/2017 State v. Ishwar & Ors. Page 52 of 60PW21/A), it is observed that the same neither bears the signatures of the complainant nor does the said site plan, give any indication as to the exact spot where the incident had allegedly transpired.
38. Despondently, one of the most disquieting features in the instant case is that even presuming for the sake of argument that the prosecution has been successful to prove that the accused persons, in fact, caused the deceased to fall in the foregoing quarrel. However, even then, from an assiduous exploration of the material brought forth, in the considered opinion of this Court, the prosecution has not been able to attribute the exact cause of demise of Smt. Yashoda to the alleged acts of the accused persons. In this regard, it is outrightly noted that nowhere under the MLC (Ex. PW4/A) of the deceased is there any indication of any external injuries on the body of the deceased. In fact, on a reading of the said MLC/Ex. PW4/A it is noted that the same, specifically records, "...No signs of fresh external injury seen at time of ME...". Congruently, PW-4/Dr. Ruchita, progenitor of the said MLC affirmed during the course of her cross examination that she had not noticed any fresh external injury on the body of the deceased/patient, namely Yashoda W/o Sh. Narayan Dass. Apposite to reproduce the cross examination of PW-4, as under;
"XXXXXX by Mr. ***, Ld. Counsel for all the accused persons namely Ishwar, Manoj Kumar and Veeru.
It is correct that I was the first doctor in the hospital who had examined the patient. I did not notice any fresh external injury on the body of the patient."
(Emphasis supplied)
39. However, despite the foregoing, it is noted that the post mortem report/PM No. 926/14 (Ex. PW6/A) of the deceased, records the presence of, "...(1) Reddish brown bruise 5 * 4 cm SC No. 204/2017 State v. Ishwar & Ors. Page 53 of 60 over middle (Rt) forearm on outer border placed 9.0 cm above the wrist joint. *** (2) Reddish abrasion 1.0 cm * 0.5 cm over (Rt.) dorsum middle of forearm placed 13.0 cm above the wrist joint...", as ante-mortem external injuries on the body of the deceased. Congruently, PW-6/Dr. S. Lal deposed on the same lines, affirming during the course of his examination in chief, as under;
"***On external examination, the following ante- mortem injuries were found to be present:
1. Reddish brown bruise 5cm x 4cm over middle right forearm on outer border placed 9 cm above the wrist joint.
2. Reddish abrasion 1cm x 0.5cm over right dorsum middle of forearm placed 13cm above the wrist joint.
On internal examination heart was found to be enlarged and its weight was about 340 grams.
Calcification of aorta was seen on posterior wall. Calcification of left anterior descending artery was also seen with blockage up to 90%.
Calcification of right coronary artery was seen with 60% blockage. The calcification with blockage was also seen in circumflex artery. Rest of the viscera were congested***"
(Emphasis supplied)
40. Therefore, in light of the foregoing discrepancy in the MLC (Ex. PW4/A) vis-à-vis, post-mortem report (Ex. PW6/A) of the deceased, it was incumbent on the part of the prosecution to adduce material/evidence to clarify the said ambiguity. However, no evidence in this regard is forthcoming on record. Even otherwise, it is seen from the record that the prosecution has been unable to prove the link/connection between the aforenoted injuries on the deceased and the cause of the deceased's demise, which was opined by PW-6/Dr. S. Lal due to cardiogenic shock due to coronary artery insufficiency. In fact, in this regard, this SC No. 204/2017 State v. Ishwar & Ors. Page 54 of 60 Court deems it apposite to reproduce the relevant extracts from the deposition of PW-6/Dr. S. Lal, as under;
"***In my opinion, the postmortem findings suggested coronary artery disease. However, heart was preserved for pathological examination. The injuries present over body are possibly caused by blunt force impact and this is possible in an assault.
*** *** *** On 16.01.2016 an application was received from Investigating Officer Surender Kumar along with histo-pathological report of heart. IO of the case sought final opinion regarding the cause of death. After going through the postmortem report findings and histo-pathological report of Hindu Rao Hospital, I opined that the cause of death was cardiogenic shock due to coronary artery insufficiency. Injuries present over the body can be caused by blunt force impact and are possible in an assault. This could be precipitated by push and pull or manhandling/assault just before death or at the time of death. The opinion is Ex.PW6/B bearing my signatures at point A.***"
(Emphasis supplied)
41. Quite evidently, it is seen from above that PW-6 deposed regarding the presence of coronary artery disease, determined by him upon the post mortem examination of the deceased. Subsequently, upon receipt of the histopathological report of the deceased, PW-6 opined the cause of her death to be, "...cardiogenic shock due to coronary artery insufficiency. Injuries present over the body can be caused by blunt force impact and are possible in an assault. This could be precipitated by push and pull or manhandling/assault just before death or at the time of death...". However, despite such assertion by PW-6, prosecution made no endeavour to determine and prove whether the said cardiogenic shock due to coronary artery insufficient was occasioned due to the injuries allegedly caused by the accused persons or even to prove that the aforenoted injuries, as noted under the post mortem report of the deceased were occasioned due SC No. 204/2017 State v. Ishwar & Ors. Page 55 of 60 to the alleged acts of the accused persons. Clearly, neither the MLC (Ex. PW4/A) nor the post mortem report (Ex. PW6/A) of the deceased indicate of any injury to the face of the deceased, occasioned due to slap. Congruently, none of the said document or even the evidence of PW-4, PW-6 or even PW-2/Dr. Leela Pant, explicate, whether any injury was caused to the deceased due to a fall. In fact, as aforenoted, MLC of the deceased is completely silent as to any external injury on the deceased, which eventually were noted on her post-mortem report. Ergo, such unexplained discordance and incompleteness in the medical reports of the deceased, too, in the considered opinion of this Court, creates a doubt in the prosecution case.
42. Here, this Court deems it further pertinent to note that the prosecution has even failed to attribute the necessary mens rea of either intention or knowledge on the part of the accused, as envisaged under Section 299/304 IPC. In fact, from a scrupulous analysis of the material placed on record, it is noted that none of the prosecution witnesses indicate that the accused persons, actually, intended to intention cause death or such bodily injury as is likely to cause death of the deceased. Congruently, the material brought forth on record is further wanting so as to attribute the mens rea of 'knowledge' on the part of the accused persons to demonstrate that the accused persons, knew that they were likely by their act to cause death of the deceased. In fact, even if the evidence of PW-1 and PW-9 is to be believed in its entirety this Court is not convinced that the accused persons had knowledge that they were likely to cause death of the deceased. In fact, PW-1 and PW-9 themselves avowed that the quarrel was ensuing between the accused persons and PW-1's father and when the SC No. 204/2017 State v. Ishwar & Ors. Page 56 of 60 deceased intervened, she was slapped by accused Ishwar, and pushed by Manoj and Veeru. Clearly, under such circumstances, presuming the deposition of PW-1 and PW-9 to be correct, no intention to cause death or bodily injury as is likely to cause death of Smt. Yashoda is forthcoming. Correspondingly, even the mens rea of knowledge cannot, in the considered opinion of this Court, attributed to the accused under such circumstances, considering that the law is trite9 that the expression "with the knowledge that he is likely by such act to cause death ", occurring in section 299 of the Code defining 'culpable homicide' is a strong word and imports a certainty and not merely a probability. Refrence in this regard is made to the decision of the Hon'ble Allahabad High Court in Ram Pal Singh v. State, 1992 SCC Online All 1158 , wherein the Hon'ble Court, explicated similar sentimentalities, under the following observation;
"14. ... In general a person does not incur criminal liability unless he intended to bring about, or recklessly brought about, those elements which constitute the crime. Every crime requires a mental element, the nature of which will depend upon the definition of the particular crime in question. A person is not to be made criminally liable for serious crime unless he intends to cause or foresees that he will probably cause, or at the lowest, that he may cause, the elements which constitute the crime in question. Taking into consideration the background in which the incident took place and the manner of assault upon Smt. Savitri, we are of the opinion that no intention or knowledge can be attributed to Ram Pal accused so as to bring the offence committed by him within the ambit of Section 299, IPC. It cannot be said that he had any intention of causing death or he had an intention of causing such bodily injury as is likely to cause death or that he had the knowledge that he is likely by such act to cause death. Knowledge is a strong word and imports a certainty and not merely a probability. The knowledge referred to in Sections 299 and 300, IPC is the personal knowledge of the 9 Lokanath Behera v. State, 1984 SCC OnLine Ori 116.SC No. 204/2017 State v. Ishwar & Ors. Page 57 of 60
person who does the act. Therefore, in our opinion, it cannot be said that the appellant has committed culpable homicide."
(Emphasis supplied)
43. In as much as the reliance of Ld. Addl. PP on the State on Explanation 1 to Section 299 IPC to bring home culpability against the accused persons is concerned, same too, fails to convince this Court in light of the material placed on record. In this regard, this Court unambiguously records that nothing has been brought on record to demonstrate intentionally or with knowledge caused bodily injury to the deceased while she was labouring under a disorder, disease or bodily infirmity, which accelerated her death. In fact, nothing has been placed on record to show that the accused persons were privy to the vulnerable state of the deceased that even the incident of slap or push, as avowed by PW-1 would occasion to her death. On the contrary, it is seen from the record that though, PW-1 deposed in his cross examination that that his mother was suffering with blood pressure and sugar disease and that she had undergone a surgery of cyst in gallbladder, besides 2-3 (two-three) more surgeries were performed on her, prior to the said surgery. However, PW-1 affirmed that the deceased was not suffering with any heart disease. Clearly, it is not even forthcoming from the deposition of PW-1 and PW-9 that the accused persons intentionally or knowingly inflicted injury on the deceased, being aware of her vulnerability, rather, as aforenoted, even as per the said witnesses, the accused persons committed the aforenoted acts, while the deceased has intervened in the quarrel between the accused persons and the complainant's father. Needless to mention that the existence of vulnerable state of the deceased is not even clearly SC No. 204/2017 State v. Ishwar & Ors. Page 58 of 60 forthcoming from the deposition of PW-2, PW-4 or PW-6, in the instant case.
CONCLUSION:
44. Conclusively, in light of the foregoing discussion, this Court unambiguously records that from the material placed on record and arguments addressed on behalf of the State as well as by/on behalf of the accused persons, the prosecution, in the considered opinion of this Court, has been unable to prove its case 'beyond reasonable doubt' against the accused persons, namely, Ishwar, Manoj and Veeru for the offences under Section 304/34 IPC, in view of the aforenoted discussion. As aforenoted, none of the 'so called' eyewitnesses to the incident, i.e., PW-1 or PW-9 have unambiguously proved the role of the accused persons in the commission of the alleged offence or clearly explicated the exact place or occurrence or the sequence in which the incident, allegedly transpired. On the contrary, as aforenoted there are material omissions/inconsistencies in the deposition of the said witnesses, as compared to each other as well as in comparison to other witnesses. Needless to mention that there are various lacunae/omission in the medical records of the deceased, besides even the necessary mens rea for the commission of offence under Section 304/34 IPC, in the considered opinion of this Court, is not forthcoming from the material placed on record, for the reasons noted herein, benefit of which, in the considered opinion of this Court, must enure in favour of the accused persons. Needless in respect of the foregoing to mention at this stage that it is trite law10 that the prosecution has to prove the charge(s) beyond reasonable doubt against an accused and that an accused is presumed to be 10 Meena v. State of Maharashtra, (2000) 5 SCC 21.
SC No. 204/2017 State v. Ishwar & Ors. Page 59 of 60innocent, till it is established otherwise. It is equally a settled law11 that in case where two views are possible, the one in favour of the accused and the other adversely against it, the view favouring the accused must be accepted.
45. Accordingly, in light of the foregoing, accused persons, namely, Ishwar, Manoj and Veeru are acquitted of the charges/allegations levelled against them for the offence(s) under Section(s) 304/34 IPC. Consequently, the accused persons, namely, Ishwar, Manoj and Veeru are admitted to bail on the said accused persons, each, furnishing a personal bond in the sum of Rs. 25,000/- (Rupees Twenty Five Thousand only) along with one surety of the like amount (each), as per the provisions under Section 437A Cr.P.C./Section 481 BNSS. Further, as requested, the bail bond be furnished by the accused persons within a period of 14 days from the date of this judgment.
46. File of the present case be consigned to record room after due compliance Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.12.24 17:30:14 +0530 Announced in the open Court (Abhishek Goyal) on 24.12.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi 11 Raghunath v. State of Haryana, (2003) 1 SCC 398, Dhan Kumar v. Municipal Corporation of Delhi, (1980) 1 SCC 605; and State of U.P. v. Nandu Vishwakarma, (2009) 14 SCC 501.
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