Delhi District Court
State vs Aish Mohd. @ Dost Mohd on 8 September, 2025
FIR No. 784/2005
PS: MALVIYA NAGAR
IN THE COURT OF MS. KIRAN GUPTA: ADDITIONAL
SESSIONS JUDGE - 04 : NEW DELHI DISTRICT :
PATIALA HOUSE COURTS : NEW DELHI
DLND010000022005
FIR No. 784/2005
PS: Malviya Nagar
(20 years old matter)
STATE VS. AISH MOHD. & ORS.
SC No. : 8468/2016
Date of offence : 04.09.2005
Accused : (1) Aish Mohd. @ Dost Mohd.
S/o Sh. Abdul Rashid
(2) Rashid
S/o Sh. Aish Mohd.
(3) Parvez Ahmed
S/o Sh. Shankat Ali
State Vs. Aish Mohd. & Ors. Page no. 1 of 71
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signed by
KIRAN KIRAN GUPTA
Date:
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FIR No. 784/2005
PS: MALVIYA NAGAR
(4) Mohsin Khan
S/o Shankat Ali
(5) Mohd. Harish
S/o Liyakat Ali
All R/o 268-D, Hauz Rani,
New Delhi
Plea of accused : Pleaded not guilty
Final Order : Accused Parvez is convicted for
the offence under S. 304 Part II
IPC.
Date of committal : 04.02.2006
Date of conclusion of
final arguments : 03.09.2025
Date of judgment : 08.09.2025
JUDGMENT
1. The case of prosecution is that on receipt of the information regarding quarrel vide DD no. 23B, the police officials of Malviya Nagar reached at Shop No. 268D, Hauz State Vs. Aish Mohd. & Ors. Page no. 2 of 71 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2025.09.08 15:08:48 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR Rani, where few other police officials were already present. They came to know that the injured has been taken to Modi Hospital. When the police officials reached Modi Hospital, patient was declared unfit for statement and they were told that he had suffered grievous injuries. One person namely Liyaqat Ali met them who gave the following statement:
" That he had left the contractor-ship of the bus No. DL1PA2207 fifteen days before. On 04.09.2005 i.e. the day of incident, Parvez told him that in future also, he should not do thekedari / contractor-ship of the said bus. At around 10:30 pm, when he alongwith his wife Saroj and friend Rahimuddin were strolling after dinner, they stopped at STD booth on the way as his wife wanted to make telephone call to her parental house. Inside the STD shop, accused Dost Mohammad, his son Rashid, Parvez, Mohsin and Haarishh were already sitting. They started quarelling with him and started abusing him. Rashid hit him with fist blow on his face and Dost Mohammad said "maaro saalo ko".
Mohsin caught hold of him while Haarishh caught hold of his friend Rahimuddin. Then Parvez took a glass bottle lying in the shop. He broke the said bottle and hit Rahimuddin on his head with the said broken bottle due to which Rahimuddin fell down. On hearing the noise, his uncle Gulsanowar and Rahisuddin, brother of Rahimuddin also came there and tried to save them. Gulsanowar also suferred State Vs. Aish Mohd. & Ors. Page no. 3 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2025.09.08 15:08:54 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR injuries. He alongwith his wife Saroj took Rahimuddin to Modi Hospital. He stated that Parvez, Mohsin, Haarishh, Rashid and Dost Mohammad together hit Rahimuddin on his head. "
2. On the basis of his statement, FIR for the offence u/s 308/323/34 IPC was lodged. The injured Rahimuddin expired in the hospital on 05.09.2015. The exhibits were lifted from the spot. Thereafter, Section 304 IPC was added in the present FIR. On 07.09.2005, the brother of deceased gave one application stating that all the five persons have caused death of his brother by hitting him on his head, hence, Section 302 IPC was added. After investigation, charge-sheet was filed against the accused Aish Mohammad, Rashid, Parvez Ahmad, Mohsin Khan and Mohd. Harish for the offences u/s. 147/148/ 149/308/ 304/302/323/201/120B/34 IPC.
3. During pendency of the trial, accused Mohsin moved an application that he be tried before the Juvenile Justice Board. Vide order dated 14.02.2006, the inquiry regarding the age of Mohsin Khan was referred to Juvenile Justice Board. The chargesheet was separated qua him and sent to JJB. On State Vs. Aish Mohd. & Ors. Page no. 4 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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30.01.2009, the file was again received back from JJB in the form of supplementary chargesheet qua accused Mohsin khan as he was not a juvenile.
CHARGE
4. After hearing arguments on the point of charge and finding a prima facie case, requisite charge for the offence u/s 143/149/302/323/201 IPC was framed against accused Aish Mohd, Rashid, Parvez and Mohd. Haarishh on 18.04.2006 to which they pleaded not guilty and claimed trial. The charge for the offence under S. 143/302/149/323/201 IPC was framed against accused Mohsin Khan on 28.02.2014 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. In order to prove its case against the accused, prosecution has examined 26 witnesses. The witnesses have been categorized as per their role as follows:
State Vs. Aish Mohd. & Ors. Page no. 5 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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PS: MALVIYA NAGAR
POLICE WITNESSES
A. PW4 Ct. Sher Singh, PW-11 Ct. Anil Kumar,
PW12 HC Jai Kishan, PW-17 ASI Shiv Kumar and PW25 ASI Shahbuddin.
(a) Both PW11 and PW25 deposed that on 04.09.2005, while they were coming back to PS Malviya Nagar after attending a call, on the way, they received DD No. 23B regarding quarrel in H. No. 268D Hauz Rani, New Delhi through telephone. They reached the spot. PW25 saw there was a telephone booth at the ground floor of the said house and there was a huge crowd collected. PW-12 HC Jai Kishan and Ct. Subhash met them.
PW25 deposed that on receiving the call regarding this, he was also directed by the duty officer to take further action on the information, so HC Jai Kishan handed over him the copy of DD no.23B Ex.PW8/A. He saw in front of the telephone booth, huge pieces of broken glass and blood were lying over there. They came to know that injured has been taken to Modi Hospital. They reached the hospital where injured was unfit for statement.
State Vs. Aish Mohd. & Ors. Page no. 6 of 71
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KIRAN KIRAN GUPTA
Date:
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PS: MALVIYA NAGAR
PW25 collected the MLC of injured Ex PW18/A of Rahimuddin in Modi Hospital on which Doctor declared him unfit for statement with grievous injury and referred him to AIIMS hospital. When he made enquiry in the hospital, one Liyakat Ali met him in the Modi hospital, who disclosed him that quarrel took place in his presence and he is the eye witness and he narrated him regarding the incident. He recorded his statement Ex.PW5/A and made endorsement Ex.PW25/A and handed it over to PW11Ct. Anil for registration of the case at about 12:30 am in the night of 05.09.2005.
(b) PW25 deposed that he went back to the spot again with Liyakat Ali from Modi hospital and due to odd hours of the night, no private photographer was available, so he arranged a camera from the PS and took five photographs of the place of incident. The injured was taken by his family members to AllMS hospital from Modi hospital. At the instance of Liyakat Ali, he prepared the site plan Ex.PW25/B. From the spot, he seized one foot rest of black colour and seized it vide seizure memo Ex.PW5/B. He also seized the broken bottle pieces vide seizure memo Ex.PW5/B. He also lifted the blood with the help of cotton and State Vs. Aish Mohd. & Ors. Page no. 7 of 71 Digitally signed KIRAN by KIRAN GUPTA GUPTA Date:
2025.09.08 15:09:13 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR seized it vide memo Ex. PW5/B. He recorded the statement of HC Jai Kishan u/s 161 Cr.PC there. In the meantime, PW11 Ct. Anil came to the spot and handed over him the copy of FIR and asal tehrir.
(c) Thereafter, PW25 and PW11 alongwith Liyakat Ali went to the AllMS hospital, where PW25 collected the MLC Ex.PW3/A of Rahimuddin on which doctor opined him unfit for statement. The duty constable of the AllMS hospital told them that one Gulsanovar @ Tanu and Kumari Arshi had also sustained injury in the said quarrel and their MLC have also been prepared but they have been discharged from the hospital. PW25 collected the MLC of Gulsanovar @ Tanu Ex. PW24/A and he was declared fit for statement on his MLC by the doctor.
Gulsanovar @ Tanu met PW25 outside the emergency ward of AIIMS hospital, so, he recorded his statement u/s 161 Cr.PC and there was no address on the MLC of Kumari Arshi and she was not present in the hospital at that time. From the AllMS hospital, PW25 again went to village Hauz Rani i.e. place of incident where he recorded the statement of witnesses u/s 161 Cr.P.C. At about 7 am in the morning, they received another DD no.47 B State Vs. Aish Mohd. & Ors. Page no. 8 of 71 Digitally signed by KIRAN KIRAN Date:
GUPTA GUPTA 15:09:21 2025.09.08 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR Ex.PW20/A regarding the death of Rahimuddin in the AllMS hospital. They again reached AllMS hospital and collected the death summary of Rahimuddin from the hospital and body was preserved in the mortuary of AllMS hospital. Thereafter, PW25 conducted the inquest proceedings and prepared the brief facts cum postmortem application Ex. PW25/C and filled up form no.25.35 Ex. PW25/D. PW25 recorded the dead body identification statement of Rahimuddin and Kamruddin as Ex.PW5/A and of Sarfaraz Khan as Ex.PW25/E. The death summary as Ex.PW25/F. After postmortem dead body was handed over to relatives of the deceased vide handing over memo. On the same day evening, PW25 made enquiry from the people of locality and also made search of the assailants but they were not present at their residence. On 06.9.2005, PW25 again made search of the assailants. Thereafter, at about 10 pm, accused Dost Mohd @ S. Mohd was arrested vide arrest memo Ex.PW16/A and his personal search was conducted vide Ex.PW16/B and he was interrogated & he gave the disclosure statement Ex.PW16/C.
(d) PW25 deposed that On 07.9.2005, the brother of State Vs. Aish Mohd. & Ors. Page no. 9 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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deceased Rahisuddin, alongwith some villagers came to PS and met him and disclosed that his brother was murdered with some conspiracy by the accused persons and he moved an application Ex. PW 25/G and he produced Rahisuddin with the application before the SHO as well as ACP and after discussion with them, section 302 IPC was added in the FIR and thereafter, further investigation was entrusted to Inspector Jagtar Singh. So, he handed over the case file to him alongwith the other relevant documents as well as photographs Ex.PW 25/H-1 to H5.
(e) PW25 deposed that On 13.09.2005, he accompanied Inspector Jagtar Singh to the court where all the four accused namely Parvez, Rashid, Mohsin and Haarish had surrendered and after due permission of the court, they were taken to the police station where they were arrested in this case vide arrest memo Ex.PW25/J (Haarish). Ex.PW25/J-1 (Parvej Ahmed), Ex.PW25/J-2 (Rashid), Ex.PW25/J-3 (Mohsin) and their personal search were conducted vide memos Ex.PW25/J-4, J-5, J-6, J-7 and J-8. They were interrogated by Inspector Jagtar Singh and their disclosure statements were also recorded. The disclosure statement of accused Parvez Ahmed is Ex.PW25/K, accused State Vs. Aish Mohd. & Ors. Page no. 10 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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PS: MALVIYA NAGAR
Rashid is Ex.PW25/K-1, accused Haarish is Ex.PW25/K2 and accused Mohsin Ex.PW25/K-3. His statement was recorded by Inspector Jagtar Singh u/S. 161 CPC.
(f) PW25 deposed that on 13.09.2005, the accused persons lead the police party to the place of incident and their pointing out memo was prepared as Ex.PW25/L (Parvez Ahmed). That on 15.09.2005, on the direction of the Inspector Jagtar Singh, he alongwith PW 17 HC Shiv Kumar, PW4 Ct. Sher Singh and accused Parvez and Rashid went to Dasana Masoori where both the accused took police party near a pulia of nehar and stated that after incident they came here and threw their blood stained clothes there and due to rainy season there was water all around the pulia and after making efforts, they could not find anything there. He prepared the pointing out memo of accused Rashid Ex.PW4/B and of accused Parvez Ex.PW4/A. Then, they came back to Delhi.
(g) PW25 deposed that On 23.10.2005, he alongwith SI Mahesh Kumar on the direction of Inspector Jagtar Singh went to State Vs. Aish Mohd. & Ors. Page no. 11 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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the spot and at his instance, SI Mahesh prepared his rough notes of the place of incident and thereafter he prepared scaled site plan and then they came back to PS where his statement u/s 161 was recorded by Inspector Jagtar Singh
(h) PW25 deposed that On 05.09.2005, duty constable handed over him, the sealed parcel containing cloth of deceased with the seal of hospital along with sample seal of the hospital and same was seized by him vide seizure memo Ex.PW11/A and same was also deposited in the malkhana. He identified the case property as Ex.PW25/Article 1 to Ex.PW25/Article2.
(i) PW11 during his cross-examination deposed that no witness or the family member of the injured met them at the time when they reached the spot on receiving the call. ASI Shahbuddin recorded the statement of Liyakat Ali in Modi Hospital at about 12:20 am and the rukka was handed over to him at about 12:30 am. His statement was recorded by the IO in this case only once on 05.09.2005.
State Vs. Aish Mohd. & Ors. Page no. 12 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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(j) PW25 during his cross-examination deposed that when he recorded the statement of injured Liyakat Ali he did not ask him to hand over his blood stained clothes. Around 50-60 persons were present on the spot. He did not record the statement of any of them. Only the front glass of the telephone booth was damaged. He did not obtain the signature of Liyakat Ali on the site plan prepared at his instance. He admitted that the STD booth is of accused Aish Mohd. Accused Parvez, Mohsin and Haarish are relatives of accused Dost Mohd. He admitted that on the date of incident, he received the MLC of Kumari Arshi D/o Aish Mohd. He admitted that there are many shops between the house of Rahimuddin and shop of Aish Mohd. He did not notice as there are many shops of STD in those shops.
B. PW-6 SI Jai Jai Ram deposed that on receipt of rukka sent by ASI Shahbuddin, PS Maliya Nagar, he recorded the formal FIR u/s 308/323/34 IPC Ex.PW6/A. After registration of the FIR, he handed over the original rukka and copy of FIR to Ct. Anil to deliver the same to the IO.
State Vs. Aish Mohd. & Ors. Page no. 13 of 71
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Date:
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PS: MALVIYA NAGAR
C. PW-7 SI Mahesh Kumar proved the scaled site
plan of the place of occurrence i.e. H. No. 268D Hauz Rani Market STD - ISD Shop as Ex.PW7/A. D. PW-8 HC Mahender Singh proved the DD No. 23B as Ex.PW8/A. E. PW-9 Ct. Mahender Singh deposed that on 03.10.2005, he deposited five pullandas and one sample seal at FSL Rohini through RC No. 86/21 and handed over the receipt to MHC(M).
F. PW-16 Ct. Summon Khan deposed that on 06.09.2005, he joined the investigation of the present case and went to H. No. 268/D and thereafter to Zakir Nagar, Mauzpur Gonda, Dariaganj, Fatehpur Berri in search of accused persons, but, they could not find accused Aish Mohammad, Rashid, Parvez, Mohsin and Haarishh. They came back to the PS. At about 10:00 pm, he alongwith IO again went to H. No. 268D Hauz Rani. They noticed that one person climbed on the roof State Vs. Aish Mohd. & Ors. Page no. 14 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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after seeing the police party. He was apprehended after running for some distance. After apprehension, he disclosed his name as Aish Mohammad. He was arrested vide memo Ex.PW16/A. His personal search was conducted vide memo Ex.PW16/B. Then they came back to the PS. During interrogation, he gave the disclosure statement Ex.PW16/C. G. PW-19 Insp. Mahavir Singh deposed that on 12.11.2005, case file of the present case was entrusted to him for further investigation. He recorded the statement of witnesses on 15.11.2005 and returned the case file to SHO, PS Maliya Nagar on 18.11.2015 alongwith the scaled site plan which was given to him by ASI Shahbuddin.
H. PW-20 Ct. Jagmal proved the DD No. 47B as Ex.PW24/A. I. PW-21 HC Haarishh Singh proved the entry in register No. 19 at Sr. No. 2788 dated 05.09.2005 as Ex.PW21/A, entry in register No. 19 at Sr. No. 2790 dated 06.09.2005 as State Vs. Aish Mohd. & Ors. Page no. 15 of 71 Digitally signed by KIRAN KIRAN Date:
GUPTA GUPTA 2025.09.08 15:09:59 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR Ex.PW21/B, RC No. 86/21/2005 dated 03.10.2005 as Ex.PW21/C. J. PW 26: Retired ACP Jagtar Singh deposed that on 04.09.2005, he was posted as SHO PS Malviya Nagar. At the time of incident, he was not present in the PS and SI Rituraj was looking after the entire work of PS Malviya Nagar in his absence.
Due to this reason, the investigation of this case remained with ASI Shahbuddin till morning of 07.09.2005. On 07.09.2005, in the noon time, brother of the deceased alongwith 3 persons came to PS Malviya Nagar and met with ACP Hauz Khas. They gave written complaint and his statement was also recorded by ASI Shahbuddin in which brother of the deceased disclosed that his brother was murdered, so, he requested that Section 302 IPC be added. Hence, Section 302 IPC was added on the direction of then ACP Hauz Khas and the investigation of this case was entrusted to him. Till that time, one accused Dost Mohd. was already arrested. He correctly identified accused Dost Mohd. Thereafter, he made several investigation teams and sent them in different areas in search of other accused persons but they could not be traced and absconded from their residence. On State Vs. Aish Mohd. & Ors. Page no. 16 of 71 Digitally signed KIRAN by KIRAN GUPTA GUPTA Date:
2025.09.08 15:10:03 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR 13.09.2005, he received telephonic message from the Naib court of the court of Sh. LK. Gaur, the then MM that an application was moved by the counsel for surrender all the four remaining accused persons. Thereafter, he alongwith PW25 and other staff came to the court. He moved an application Ex.PW26/A for interrogation of the accused persons and interrogated each of the accused person namely Parvez, Mohisin, Haarish and Rashid. All the four accused were arrested and taken to PS Malviya Nagar, where they were again interrogated by him and arrested in this present case vide arrest memo Ex.PW25/J (accused Mohd.
Haarish), Ex.PW25/J-1 (accused Parvez Ahmed), Ex.PW25/J-2 (accused Raashid), Ex.PW25/J-3 (accused Mohisin Khan) and their personal search was conducted vide memo Ex.PW25/J-4, J- 5, J-6 and J-7. He recorded their disclosure statement one by one. The disclosure statement of accused Mohd. Parvez Ex.PW25/K, Accused Rashid Ex.PW25/K-1, Accused Mohd. Haarish Ex.PW25/K-2, Accused Mobin Khan Ex.PW25/K-3. They disclosed their particular role in the present case. Accused Mohd. Parvez led the police party to recover the bottle from where he had thrown the same. He pointed out that place vide memo Ex.PW25/L, but, the bottle could not be traced over there. Then, State Vs. Aish Mohd. & Ors. Page no. 17 of 71 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2025.09.08 15:10:07 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR he recorded the statements of PWs u/s 161 CPC. On 15.09.2005 a Special Team headed by ASI Shahbuddin was formed and both the accused Mohd. Parvez and Mohd. Rashid took them near Dasna Nehar Gulawati UP but nothing was recovered from there and thereafter ASI Shahbuddin came back and handed over him the case file.
On 16.09.2005 both the accused Mohd. Parvez and Mohd. Rashid were produced in the concerned court and they were remanded to JC. That during the period of investigation, the daughter of accused Dost Mohd. filed many complaints before various authorities, so this case was transferred to DIU of South district from him. The DIU of South District after completion of investigation, filed the charge-sheet. He filed the CFSL result in the court after collecting the same from there.
MEDICAL AND FORENSIC EVIDENCE K. PW-2 Dr. M.G. Jayan, SR, AIIMS Hospital deposed that on 05/09/2005, he conducted postmortem on body State Vs. Aish Mohd. & Ors. Page no. 18 of 71 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2025.09.08 15:10:11 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR of Rahimuddin. He noticed following injuries:
1. Reddish brown abrasion over right forearm, the radial aspect of size 7 X 2 cm.
2. Stellate shaped unhealed sutured, lacerated wound with red irregular margins over parietal region of scalp in the mid line measuring 15 cm from left mastoid 17 cm from right mastoid and 18 cm from the glabello of size 16 X.3 cm.
He deposed that skull showed closed depressed stimulated fracture involving medial aspect of right and left parietal over an area of 6 x 3.5 cm including whole thickness of bones associated with hematoma. Diffuse subdural hematoma over both parietal lobes associated with diffuse sub arachnoid hemorrhage over parietal lobes of and middle portion of frontal lobes of about 100 ml. Brains showed laceration of size 4 X 2 X1.5 cm in the right parietal lobe beneath the fracture part associated with parenchymal contusion of the adjacent area. The cause of death in this case is coma due to cranio-cerebral injury as mentioned caused by blunt force which is sufficient for death in ordinary State Vs. Aish Mohd. & Ors. Page no. 19 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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course of nature. He proved the report as Ex.PW2/A. PW2 during his cross-examination deposed that he did not notice or found any foreign objects on the wound examined by him. The injury no. 1 was a simple injury and the same cannot be caused with any sharp edged weapon. He deposed that the injury found on the person of the deceased could not be caused by hit against the wall. He examined the wound after opening the suture. He did not find traces of any foreign object after opening the suture wound. The cranial fracture is possible by a fall.
L. PW-3 Dr. Arun Kumar JR Surgery Department. AIIMS Hospital deposed that on 05/09/2005, he examined one Rahimuddin aged 20 years male brought to the hospital by Const. Anil PS Malviya Nagar with the history of assault with glass bottle at 9:30 p.m on 04/09/05. The patient had received some treatment in private hospital and was referred to AIIMS. He proved the MLC as Ex PW3/A. He deposed that at 12.16 a.m. patient was unfit for statement.
State Vs. Aish Mohd. & Ors. Page no. 20 of 71
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He during his cross-examination deposed that patient was not alive when he examined him. He did not notice or found any traces of glass or any other foreign object in the wound at the time of examination.
M. PW-3 Dr. Devendra Garg, Senior Resident, AIIMS identified signatures of Dr. Arun Kumar and writing on the MLC no. 116250/05 of patient Rahimuddin dated 05.09.05 Ex.PW3/A. As per MLC the patient was admitted in the AIIMS Hospital at 00:16 AM with the alleged history of assault and on examination, there was no sign of life and patient was declared dead at 01:00 AM on 05.09.2005. He deposed that he identified the handwriting of Dr. Arun Kumar as per record. He during cross-examination admitted that he had never worked with Dr. Arun Kumar in AIIMS. He had never seen Dr. Arun Kumar writing and signing.
N. PW-18 Dr. Rakesh Yadav proved the MLC of Rahimuddin as Ex.PW18/A. He deposed that when he examined the patient, he found the following injuries:
State Vs. Aish Mohd. & Ors. Page no. 21 of 71 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2025.09.08 15:10:26 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR a. Deep lacerated wound actively bleeding on the head i.e. parietal region 4-5 cm long, patient was drowsy and disoriented. The patient was unfit for statement with grievous injuries.
He during his cross-examination deposed that the injury found by him on examination on the head of Rahimuddin can be possible by the sharp edged weapon or object. Such type of injury can be possible, if, a person falls from staircase or any foreign object and hit with the sharp and blunt object. As the wound was profusely bleeding, he could not find any foreign object on the sheet of injury and the wound was actively bleeding and heavy swelling.
O. PW-22 Dr. Archana proved the X-ray report prepared by Dr. Zafar Niyaz dated 05.09.2005 as Ex.PW22/A. P. PW24: Dr. Sanjeev Lalwani, Asstt. Professor, Department of Forensic Medicines and Toxicology deposed that he has been deputed by the MS vide letter dated 18.08.2010 State Vs. Aish Mohd. & Ors. Page no. 22 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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Ex.PW24/C to depose on behalf of Dr. Manisha Verma. He identified the handwriting and signature of Dr. Manisha Verma on the MLC of Gulsanovar and Liyakat Ali dated 05.09.2005. He identified the signature of Dr. Manisha Verma on both the MLCs Ex.PW24/A and Ex.PW24/B. Q. PW 27: Ms. Shashi Bala, Sr. Scientific officer, Biology, FSL, Rohini, deposed that on 03.10.2005 five sealed parcels were received in their office and same were marked to her for examination. She examined those parcels and analyzed the same and found the blood on Ex.1 i.e. one rubber piece described as rubber mat, Ex.2 i.e. glass pieces having brown stains, Ex.3 i.e. damped foul smelling cotton wool swap having blackish brown stains, Ex.4 a i.e. one damped foul smelling underwear, Ex. 4b i.e. one damped foul smelling shirt, Ex.4 c i.e. one damped foul smelling loongi and Ex. 5 damp yellowish gauze cloth piece. She also examined these exhibits Serologically and prepared report Ex.PW27/A. State Vs. Aish Mohd. & Ors. Page no. 23 of 71 Digitally signed by KIRAN KIRAN Date:
GUPTA GUPTA 15:10:34 2025.09.08 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR She also examined the exhibits Serologically and found on Ex.1 i.e. one rubber piece described as rubber mat having human blood of B group. Ex. 2 blood stain glass pieces having human blood of B group, Ex 3 blood stain cotton and on Ex. 4 a underwear having no reaction, Ex.4b shirt human blood no reaction, Ex.4C loongi human blood no reaction, Ex.5 blood stain gauze, human B group and proved her serological report Ex. PW27/B. R. PW 28. Dr. Sudipta Ranjan Singh, Sr. Resident Department of Forensic Medicine, AIIMS proved the postmortem report no. 1065/05 dated 05.09.2005 of Rahimuddin prepared by Dr. M.G. Jayan as Ex.PW2/A. As per postmortem report, the cause of death was due to cranio-cerebral injury caused by blunt force, which was sufficient to cause death in ordinary course of nature. All the injuries were ante mortem in nature. She identified the handwriting and signature of Dr. M.G. Jayan on the postmortem report.
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MATERIAL WITNESSES
S. (a) PW1 Rahisuddin,
(b) PW5 Liyakat Ali,
(c) PW10 Kishan,
(d) PW13 Saroj
(e) PW14 Gulsanovar
are material witnesses. Their testimony in detail shall be discussed in the later part of the judgment.
T. PW-15 Karimuddin proved his statement regarding identification of the body of deceased as Ex.PW15/A. U. PW23 Mukesh Kumar Shukla deposed that he was residing in house no. 268. Ground floor situated in Hauz Rani, Malviya Nagar, New Delhi as a tenant of Rahisuddin. On 04.09.2005, at about 10:30 p.m, when he was present inside his room, he heard that Rahimuddin @ Mui sustained injuries in a quarrel. Thereafter, he went to the place of incident which was State Vs. Aish Mohd. & Ors. Page no. 25 of 71 Digitally signed by KIRAN KIRAN Date:
GUPTA GUPTA 2025.09.08 15:10:43 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR situated near STD shop and found some public persons were already present there, where he came to know that Rahimuddin was taken to Modi Hospital by someone. Thereafter, he immediately rushed to Modi Hospital on his bike. In the hospital, he met with doctor in emergency ward and on asking by the doctor at Emergency, he disclosed the whereabouts of Rahimuddin which was noted by them on MLC. Thereafter, many people reached the hospital and from Modi Hospital, Rahimuddin was referred to AIIMS hospital where he saw him vomiting.
STATEMENT OF ACCUSED
6. After completion of prosecution evidence, all incriminating material as appearing in the evidence was put to the accused persons under Section 313 Cr.PC. They pleaded innocence and stated that they have not committed any offence.
They have been falsely implicated by the police in connivance with the complainant. On the day of incident, Liyakat, Rahimuddin, Rahisuddin, Usman, Nawab, Tabbal, Gulsanovar State Vs. Aish Mohd. & Ors. Page no. 26 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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and many others came to the STD booth at about 10:45 pm having rods and dandas in their hands and attacked the STD booth and broke all the accessories. They made several calls to the police. Their sister Ms. Arshi sustained injury on her head. Their complaints were not lodged by the police. They have been falsely implicated by the police in the present case. They chose to lead DE.
DEFENCE EVIDENCE
7. In order to prove their case, accused persons have examined following witnesses:
A. DW-1 Ms. Arshi deposed that on 04.09.2005, her father Aish Mohd. @ Dost Mohd. was present in the room of their house between 10:30 p.m to 10:45 p.m. On the direction of her father, she went to take the dinner for him from the kitchen and while she was going towards kitchen, she heard a huge noise of damaging household articles / todfod. She immediately rushed to her father and narrated this thing. Her father also immediately State Vs. Aish Mohd. & Ors. Page no. 27 of 71 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2025.09.08 15:10:52 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR rushed towards the noise. When her father was running, in the meantime, a crowd of huge persons entered in the room. When she was peeping from the ventilator / window / roshandan, she immediately sustained injury on her forehead from a stone thrown upon her by Nadeem Khan. Blood started oozing out from her wounds. PCR came over there and she alongwith her brother Rashid and her sister Anjum were taken to the hospital and her father also followed them. Thereafter, she became unconscious and does not know anything else.
B. DW-2 Ms. Anjum Parveen deposed that on 04.09.2005 at about 10:30 p.m, she was studying in her room adjoining to the shop of STD owned by her brother Rasheed.
There is a window on the wall between the shop and her room. At that time, her brother Rasheed came to her room and told her that Parvez, Haarishh and Mohisin came to his shop and they demanded water. Her brother Rasheed told her that some quarrel has taken place with them. Her brother Rasheed went inside to take water and during that time, she peeped out from the window in the shop of her brother Rasheed and saw that, at that time Haarishh told Irfan who was already sitting in the shop that their State Vs. Aish Mohd. & Ors. Page no. 28 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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bus has been stopped by Kakku and they also snatched the money from them. During that time, some other persons were also coming in very fast manner with dandas, rod, bottle etc and they started damaging the goods of their shop. In the meantime Parvez entered in the booth to make a call to PCR, but, they damaged their booth also. She immediately tried to bolt her door from inside to save herself even though they entered in her room and slapped her and Shanno snatched her chain from neck and in the meantime, there was one gate between her room and the shop, so, they entered in a courtyard situated in front of her room in their house and went to the first floor. They damaged the belongings kept at the first floor i.e. fridge, cooler and other household articles and electronic items. In the meantime, Nadeem s/o Mullah Nisar who is residing in the back side of their house threw/pelted the stone on the head of her sister Arshi and she sustained injuries on her forehead and blood started oozing out. In the meantime, call has already been made to the police and PCR came to the spot. In the PCR van, she alongwith her sister and Rasheed took her to AIIMS Hospital and younger brother who was with her father, also followed them on two wheeler scooter.
State Vs. Aish Mohd. & Ors. Page no. 29 of 71 Digitally signed KIRAN by KIRAN GUPTA GUPTA Date:
2025.09.08 15:11:00 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR C. DW-3: Sh. S.L. Tyagi deposed that on 04.09.2005 at about 10:30 p.m, he was present in the house of his relative situated in Village Hauz Rani. At that time, he came out to take bus route no. 501. He saw a quarrel was going on at the bus stand. He stood aside at the bus stand. All the persons who were involved in the quarrel went towards the STD shop. At that time, some were pelting the stone, some were having lathis, dandas in their hands. He also followed them towards STD shop. After the quarrel was over, he again proceeded towards his house.
D. DW-4: HC Bal Kishan deposed that the summoned record i.e. the PCR call record for the period from 01.07.2005 to 30.06.2006 relating to CPCR has been destroyed/weeded out on 30.06.2006 vide order no. 809-11/HAR/PCR dated 07.10.2009.
E. DW-5: ACP Ram Avtar Meena produced the order for weeding out the old record /documents of PCR Unit Delhi for the period from 01.07.2005 to 30.06.2006 dated 07.10.2009 Ex.DW5/A. The certificate of weeding out issued by ACP GA State Vs. Aish Mohd. & Ors. Page no. 30 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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Veena Sharma, PCR Delhi as Ex.DW5/B. The circular dated 22.10.2007 as Ex.DW5/C. F. DW-6: HC Suman Singh Pathania proved the FIR no. 195/06 U/s 147/149/395/323/427 IPC registered with PS Malviya Nagar on the complaint of Ms. Anju Parveen D/o Aish Mohd. Dost. as Ex.DW6/A. G. DW-7: Iqbal Khan deposed that accused Aish Mohd used to meet him in the Jama Masjid of Saket twice or thrice in a day during the Namaz period. They had visiting terms to the house of each other. That on 04.09.2005, he received a telephonic message from Dost Mohd. at about 10:45 p.m, who informed him that his shop has been damaged and some people are pelting stones on his shop and house. He also told him that his daughter had sustained injury on her forehead and called him immediately. He immediately rushed to his house on his two wheeler scooter. When he reached his house, he saw his shop was damaged and the goods of the shop were lying scattered on the ground with the galla / cash box. He shouted to call Aish Mohd, State Vs. Aish Mohd. & Ors. Page no. 31 of 71 Digitally signed KIRAN by KIRAN GUPTA GUPTA Date:
2025.09.08 15:11:13 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR but he came after 5 to 10 minutes later and on his asking, he accompanied him to the Modi Hospital where a lot of people were already standing and after seeing him, they uttered that he is Dost Mohammad in whose shop quarrel took place. There one Insp. Sardarji was standing and after seeing Dost Mohd, he instructed one Sl to take him to PS. He also followed them and reached PS. Dost Mohd. remained sitting in the PS for the whole night. Aish Mohd asked him to go to AIIMS Hospital to see the condition of his daughter. Then he went to AIIMS Hospital, where his daughter Arshi met him. In the AIIMS hospital, elder son and daughter of Aish Mohd namely Rashid and Anjum Parveen were also present and they told him that they came to AIIMS in police Gypsy. Thereafter, he came out from the AIIMS and went back to his house. In the morning, he again received telephone call from Aish Mohd @ Dost while he was taken to Gulauti by the police personnel. He went to the house of accused Aish Mohd. Dost and informed his family about the same.
H. DW-8: Islamuddin Khan deposed that on 04.09.2005 at about 10:45 p.m, while he was coming back to his house from Malviya Nagar side, on the way, he saw quarrel. He State Vs. Aish Mohd. & Ors. Page no. 32 of 71 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2025.09.08 15:11:18 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR also stood over there and saw that many people were having rod type thing and dandas in their hands and they were damaging the STD Booth and they have damaged the FAX Machine, Telephone etc of the said STD Booth. One man tried to gave blow with some danda type article and same hit one person on his back side of the head. The person who gave the danda blow ran away from there and went away towards his house. Thereafter, those persons who went upstairs of the shop had also come over there. In the meantime, one old person came there and uttered "bachao bachao" (save me, save me). When he asked about him, someone told him that he is Aish Mohd, owner of the STD Booth. Thereafter, he immediately called one TSR and sent the injured in the said TSR to some hospital. After 5/6 minutes later, PCR came over there. One girl was having forehead injury and blood was oozing out, she was taken by the PCR to the hospital alongwith his family members i.e. one more girl and boy. Thereafter, he does not know what happened over there and went away to my house.
I. DW-9: Bhuvan Ram is the medical record technician at AIIMS, New Delhi. He proved the MLC of Ms. State Vs. Aish Mohd. & Ors. Page no. 33 of 71 Digitally signed by KIRAN KIRAN Date:
GUPTA GUPTA 2025.09.08 15:11:22 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR Arshi D/o Aish Mohd prepared by Dr. Arun Kumar as Ex.DW9/A. ANALYSIS AND FINDINGS
8. The accused persons are facing trial for the offences under S. 143/149/323/302/201 IPC. The essential ingredients of the offence U/s. 302/34 IPC are as follows :
1. Death of a human being was caused;
2. Such death was caused by or in consequence of the act of the accused;
3. Such act was done;
a. with the intention of causing death, or b. that the accused knew it to be likely to cause death,or c. that the injury was sufficient in the ordinary course of nature to cause death.
9. The prosecution in order to prove the offence U/s.302 IPC against the accused has to prove :
A. The presence of accused on the spot at the time of incident.
B. His identification by the eye witness.
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C. The injuries caused to the deceased and
medical opinion as regards cause of death. D. The motive of the accused in causing death of deceased.
CAUSE OF DEATH
10. The prosecution in order to prove the cause of death has relied upon the postmortem report of deceased Ex.PW2/A. As per Ex.PW2/A, the cause of death is coma due to cranio cerebral injury caused by blunt force impact which is sufficient for death in ordinary course of nature. The examining doctor found lacerated wound with red irregular margins over parietal region of scalp in the mid line measuring 15 cm from left mastoid, 17 cm from right mastoid and 18 cm from the glabelo of size 16 x 0.3 cm. The brain showed laceration of size 4 x 2x 1.5 cm in the right parietal lobe beneath the fracture part associated with parenchymal contusion of the adjacent area. As per the MLC of deceased Ex.PW18/A, deep lacerated wound actively bleeding on the head i.e. parietal region 4-5 cm long was found and the patient was drowsy and disoriented. The patient was found unfit for statement with grievous injuries.
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11. Both PW2 and PW18 during their cross-examination deposed that they did not notice or found any foreign objects on the wound examined by them or on the sheet of injury. PW18 deposed that the wound was actively bleeding and there was heavy swelling. PW2 deposed that the injury could not be caused by hit against the wall. He examined the wound after opening the suture but did not find any traces of foreign object after opening the suture wound. He deposed that cranial fracture is possible by a fall. PW18 deposed that the injury found on the head of Rahimuddin can be possible by the sharp edged weapon or object. Such type of injury can be possible, if, a person falls from staircase or is hit with the sharp and blunt object.
12. Thus, both the doctors who examined Rahimuddin when he was admitted in the hospital and during his postmortem have deposed that they did not find any foreign object in the wound on the head. The cause of death is cranio cerebral damage consequent upon blunt force impact on the head which is sufficient to cause death in the ordinary course of nature.
State Vs. Aish Mohd. & Ors. Page no. 36 of 71 Digitally signed by KIRAN KIRAN Date:
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13. The case of prosecution is based on the ocular evidence. In the present case, the material witnesses of prosecution are PW1, PW5, PW10, PW13 and PW14.
A. PW1 Rahisuddin is the brother of deceased.
(a) He deposed that deceased Rahimuddin was his real younger brother. He was working as a driver in private cars and also used to work as helper in the bus of Liyakat @ Kaku. The bus was taken by Liyakat Ali on contract. Accused Parvez had taken that bus which was being plied by Liyakat Ali. One week prior to the incident, he alongwith his brother were going to Mehrauli, where at the Mehrauli bus stand, accused Haarishh and Parvez met them on the bus stand Mehrauli and told Rahimuddin that Liyakat Ali was trying to take the bus on contract again and, if, so happened, the result would be bad and further told that, if, so happened they will kill Rahimuddin. Thereafter, he and his brother went to Mehrauli. Haarishh and Parvez also left.
(b) On 04/09/2005 at about 10.30 p.m., he alongwith
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Gulsanovar were sitting in front of their house. His brother Rahimuddin, Liyakat Ali and his wife Saroj were going towards Saket on the public way. After some time, they heard some noise. He and Gulsanovar rushed to the side from where the noise was coming. They reached the STD booth of Dost Mohd. There he saw that Liyakat Ali was caught hold by Mohsin and accused Haarishh had caught hold of his brother Rahimuddin. Accused Dost Mohd and his son Rashid were exhorting "MAAR DO SALEY KO, JO HOGA DEKH LENGEY". He noticed that Parvez was having broken bottle in his hand. He hit that bottle on the back side of his brother Rahimuddin. Gulsanovar tried to overpower Parvez, but, Parvez hit bottle on his left hand. They raised alarm. Saroj was also weeping and raising alarm while standing at the gate of STD Booth. On their raising alarm, all the accused persons fled away. Liyakat Ali and Saroj took his brother to Modi hospital in a TSR. He also reached there alongwith Gulsanovar. Two police persons reached there, but, he does not know who informed them. He correctly identified accused Mohd Haarishh, Mohsin Khan, Parvez, Rashid and Dost Mohd @ Aish Mohd in the court.
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(c) He during his cross examination deposed that his
statement was recorded by the police on 07.09.2005. He deposed that Haarishh also threatened to kill his brother Rahimuddin. He was confronted with his statement Ex.PW1/DA where following things are not so recorded:
a. That Haarishh also threatened to kill his brother Rahimuddin.
b. Jo hoga dekh lenge.
c. "Maar do salon ko" instead of "Maaron salon ko".
d. When Gulsanovar tried to overpower Parvez, he hit
him on his right hand with broken bottle.
(d) He deposed that he knows Dost Mohd. and his family members since his childhood. Neither he nor his brother ever had any quarrel with Rashid and his father Dost Mohd. He knows Liyakat Ali for the last 8-10 years. His brother was knowing Liyakat Ali for 6-7 years. Liyakat Ali was plying only one bus on contract. The bus was plying on route no. 534 from Mehrauli to Anand Vihar and vice versa. His brother Rahimuddin was working as helper on the bus of Liyakat for last 2-3 months before the incident and he was not permanent helper. He used to go on the day when his brother was on leave from the place State Vs. Aish Mohd. & Ors. Page no. 39 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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where he was working as a driver. He came in contact with Parvez and Haarishh about 15 days prior to the incident. The residence of Dost Mohd. is on the first floor of the STD booth.
On the one side of the STD booth, there is Press Enclave Road and on the other side is Saket Road connecting to Malviya Nagar.
(e) He deposed that from the spot, he went to his home. He told his elder brother Karimuddin that Rahimuddin had sustained injuries and he has been taken to hospital. He remained at the house for 10-15 minutes, when he went there to inform his brother Karimuddin. His brother Karimuddin left the house immediately after getting the information about the incident. He has no knowledge how many persons left with Karimuddin, but, whosoever came to know about the incident, left the house. He alone came to the house from the spot after the incident. He did not inform the police about the incident as the telephone booth near his house was closed. The police did not reach the spot till he was there. He reached Modi Hospital on foot. Two police personnels were there in the Modi Hospital when he reached there. He remained in Modi Hospital for about 5-10 minutes as his brother had already been referred to AIIMS Hospital. He State Vs. Aish Mohd. & Ors. Page no. 40 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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reached AIIMS Hospital and then to PS Malviya Nagar. He came to know about the death of his brother in AIIMS itself. He did not give any statement to the police either in AIIMS or Modi Hospital or in the police station. His statement was recorded in the police station on 07.09.2005 in the morning. His brother Karimuddin and his two cousins Guddu and Iqbal accompanied him to the police station. The police did not record the statement of any other person in his presence.
B. PW5 Liyakat Ali is the eye witness of the incident.
(a) He deposed that he is working as a driver in a RTV bus. Earlier, he was conductor of bus and used to ply bus No. DLI P 2207. Fifteen days earlier to the incident, he left the contract of the bus and started work as driver on RTV. On 04.09.2005, he was present at his house. Parvez met him on the road at noon time and told him that he should not ply the above said bus on contract in future. He came back to his house. On that night at about 10.30 PM, he along with his wife Saroj and his State Vs. Aish Mohd. & Ors. Page no. 41 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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friend Rahimuddin were going for a walk after dinner. On the way, STD of Dost Mohd comes. His wife told him that she wanted to make a phone call to her parents and she went inside the STD booth and he along with Rahimuddin were standing outside the STD booth. Parvez, Dost Mohd., Rashid, Mohsin and Haarishh were sitting inside the STD booth. All the above said five persons came outside the STD booth and accused Parvez started abusing him and used filthy language. Rashid gave him a fist flow on his face. Dost Mohd exhorted 'Maro Salo Ko, Jo Hoga Mai Dekh Loonga'. Mohsin caught hold of him and Haarishh caught hold of Rahimuddin. Parvez went inside the booth and picked up a glass bottle, hit it on the wall to break it and after breaking the bottle, hit on the back head of Rahimuddin with the broken bottle. After being hit, Rahimuddin fell down and started bleeding. His wife raised alarm and shouted. His maternal uncle Gulsanovar and his brother Rahisuddin also came there. Gulsanovar also received injuries while he was intervening and separating them. He alongwith his wife Saroj took Rahimuddin to Modi Hospital in a TSR. Police met him in the Modi Hospital where his statement Ex. PW 5/A was recorded. His clothes and the clothes of his wife were stained with blood.
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From Modi hospital, he came to the spot along with the police. Police took the blood sample from the earth which was lying on the ground in the bottle and seized it vide seizure memo Ex. PW5/B. Foot-mat was seized vide memo Ex. PW5/C and blood stained broken pieces of glass bottle were also seized by the police vide memo Ex. PW5/D. He identified the foot mat as Ex.P1, the glass pieces as Ex. P2 and blood stained cotton piece as Ex. P3.
(b) During testimony, he brought a white colour pant having some stains and black shirt having check of cream colour having some stains. Witness claimed that it has blood stains. When he was asked as to why he had not given this pant and shirt to the police, he deposed that as police did not ask him to give it to them he did not hand over the same.
(c) PW5 during his cross-examination deposed that his statement was firstly recorded on 04.09.2005 and then on 05.09.2005. He was wearing the same clothes which he was wearing at the time of incident when his first statement was State Vs. Aish Mohd. & Ors. Page no. 43 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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recorded in Modi Hospital. He was confronted with both his statements dated 04.09.2005 and 05.09.2005 Ex.PW5/A and Ex.PW5/D1 where it is not recorded that he had disclosed the police that his clothes got stained and he has those blood stained clothes. He deposed that he does not remember exactly whether he told the police in his statement Ex.PW5/A that Dost Mohd. exhorted "maaro salo ko aur maaro salo ko" due to lapse of time. He was confronted with his statement Ex.PW5/A wherein the following statement is not mentioned:
a. Words "jo hoga mai dhekh lunga" exhorted by Dost Mohd. are not mentioned.
b. Parvez went inside the shop to get the bottle, instead it is mentioned that he brought bottle from shop. c. That Saroj went inside the STD booth and he alongwith Rahimuddin remained outside. d. That Dost Mohd., Rashid, Parvez, Mohsin and Haarish came outside the STD Booth.
(d) He deposed that he does not know whether the bottle was of alcohol or of soft drink, but it was a glass bottle. He deposed that he knew Nawabuddin as he is his maternal uncle and is residing at the same address where he is residing. He has been brought up by Nawabuddin. That Nawabuddin who is his State Vs. Aish Mohd. & Ors. Page no. 44 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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maternal uncle was the owner of the RTV bus which he took on contract. He admitted that on 14.09.2006, while deposing in the court, he had given the wrong number of the bus as DL 1P 2207 instead of 1590. He left the contract of bus number 1590, 15 days prior to the date of incident. The contract of bus number 1590 was given to Parvez by his maternal uncle Nawabuddin. He left the contract of bus number 1590 out of his free will without any pressure. He never asked Parvez to give bus number 1590 to him.
The route of his RTV and of bus no. 1590 was not common and was different. He did not tell Nawabuddin that Parvez asked him not to take contract of bus no. 1590. He was knowing Rahimuddin for about 1.5 years prior to the incident and was not knowing Rahisuddin, brother of Rahimuddin, prior to the incident. After the incident, he came to know that Rahisuddin is the brother of Rahimuddin. He came to know about Mohsin, Haarish and Parvez 2-3 days prior to the incident. He was not having any dispute with Dost Mohd. and Rashid prior to the incident. He deposed that he can neither affirm nor deny that there is another STD booth which is about 40 steps away from his residence towards the house of Rahisuddin or that it remains open till midnight. He has no knowledge whether there is STD State Vs. Aish Mohd. & Ors. Page no. 45 of 71 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2025.09.08 15:12:39 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR booth opposite to the house of Rahisuddin at a distance of 15 ft. from the main entrance leading to the house of Rahisuddin.
(e) He deposed that all the 5 persons were visible from the road while sitting inside the booth. His wife was knowing Parvez even before the incident. The accused persons were using abusive language at loud pitch and they continued to use abusive language for about 4-5 minutes. He also might have abused the accused persons. He has no knowledge whether Rahimuddin had also abused the accused persons while they were abusing them.
He again said that Rahimuddin also abused the accused persons while they were abusing them. He denied all the remaining suggestions given by ld. Defence Counsel.
C. PW-10 Kishan deposed that on 04.09.2005, at about 10:30 pm, he came from Kumhar Basti side towards the STD booth of accused Dost Mohammad. While he was passing in front of that STD booth, there was a crowd at the booth. There was quarrel/fight and he saw accused Mohsin had caught hold of Liyakat Ali. Accused Haarish had caught hold of Rahimuddin.
State Vs. Aish Mohd. & Ors. Page no. 46 of 71 Digitally signed KIRAN by KIRAN GUPTA GUPTA 2025.09.08 Date:
15:12:53 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR Accused Rashid was inflicting fist blows to Liyakat Ali. Accused Dost Mohammad was giving exhortation to accused persons to beat Liyakat Ali and Rahimuddin and was saying "maaro saalo ko, mai dekh lunga". Meanwhile accused Parvez picked up a soft drink Pepsi bottle from basket/crate which was there outside the shop adjoining STD booth. He hit that Pepsi bottle against wall first and then from the broken edge side of the bottle, he gave the blow on the head of Rahimuddin. Rahimuddin fell on the ground as soon as he was hit by that bottle. He was bleeding from that injury and then accused Parvez ran into his STD shop as it led inside the house which belongs to accused. All the accused persons likewise ran away from the spot through their STD shop into their house and they disappeared. Liyakat and his wife Saroj then lifted Rahimuddin and took him to Modi Hospital in an autorickshaw. Rahishuddin, brother of Rahimuddin also reached at the spot. Gulsanovar was also present during the incident. From Modi Hospital, Rahimuddin was referred to AIIMS and by the time they took Rahimuddin to AIIMS, he died and was declared dead in AIIMS hospital.
He during his cross-examination deposed that when he State Vs. Aish Mohd. & Ors. Page no. 47 of 71 Digitally signed by KIRAN KIRAN GUPTA Date: GUPTA 2025.09.08 15:12:57 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR came to the spot after hearing the noise of quarrel, he saw Rahimuddin in injured condition with pool of blood at the gate of STD booth. There was crowd at that time and Liyakat Ali alongwith his wife was also there. Liyakat Ali was having danda in his hand at that time. When he saw the injured Rahimuddin at the gate of STD, the accused persons were not present. When his statement was recorded in the court on the last date, at that time, he was directed by the police that whatever is written in his statement, he has to depose the same in the court, so he deposed same in the court. He cannot say, whether he had deposed truth on that day or today in the court but has deposed as per the contents written in his statement.
D. PW-13 Smt. Saroj is also one of the eye witness of the incident.
(a) She deposed that on 04.05.2005, at about 10:30 pm, after taking dinner, she alongwith her husband Liyakat and the friend of her husband Rahimuddin went outside for strolling. At that time, she went to the STD shop of Dost Mohammad @ Aish State Vs. Aish Mohd. & Ors. Page no. 48 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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Mohammad. The said STD shop falls on the way. At that time in the shop, Parvez, Haarishh, Mohsin, Rashid were also present.
Mohsin, Haarishh, Parvez and Rashid were talking regarding her husband and his friend Rahimuddin that "ye saale gaadi ke theke barhaake lete hain, inko sabak sikhana jaroori hai". In the meantime, Rashid told them that Liyakat Ali and Rahimuddin are standing outside the shop and they all started abusing her husband Liyakat Ali and his friend Rahimuddin and started beating them. At that time Dost Mohammad was uttering to Rashid, Parvez, Mohsin and Haarishh that "maaro saalo ko, jo hoga mai dekh lunga". Accused Rashid gave fist blow on the face of her husband. Thereafter, Mohsin caught hold of her husband and Haarishh caught hold of Rahimuddin. Thereafter, accused Parvez after picking a Pepsi bottle, gave its blow on the back side of the head of Rahimuddin. Blood started oozing out from the wounds of Rahimuddin. After seeing the blood, she wanted to raise the alarm but could not raise the same because she was perplexed. Parvez also gave blow with the Pepsi bottle on the head of her husband Liyakat Ali and blood started oozing out from the temporal region of her husband. Thereafter, she alongwith some villagers took her husband and Rahimuddin to State Vs. Aish Mohd. & Ors. Page no. 49 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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Modi Hospital.
(b) She during her cross-examination deposed that she
remained in STD booth for about 10-15 minutes. During the said period, the accused persons started abusing, hence, she did not make the call. She did not interfere in the matter when the accused persons were abusing her husband and Rahimuddin. She admitted that till she remained in the STD shop, all the accused persons were also present inside the shop. At that time, all the accused persons were talking to each other in loud way. She volunteered that they were uttering "ye theka barake leta hai, isko to sabak sikhana hi padega". She did not tell the police that blood started oozing out from the temporal region of her husband as she was afraid and became perplexed. She does not know whether at that time Liyakat Ali, Rahimuddin, Wahabuddin, Nadeem and Usman were having dandas and iron rods in their hands. She did not see these persons when they broke the glass of STD shop by danda or rod. She denied the suggestion that she alongwith these persons entered in the STD shop after breaking its glass. She denied that at that time Gulsanovar had broken the meter reading machines lying over there and Nawab had damaged the telephone State Vs. Aish Mohd. & Ors. Page no. 50 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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instrument and FAX machine installed over there. She denied that Tawal and Usman robbed a sum of Rs.7,000/- from the cash box of STD shop. She denied that she alongwith her husband started pelting stones on the shop. She denied that Liyakat Ali gave the danda blow on the head of Rahimuddin and due to the said danda blow Rahimuddin expired. She denied all the other suggestions given by the Ld. Defence Counsel.
D. PW-14 Gulsanovar deposed that on 04.09.2005, at about 10:30 pm, when he was going towards the side of the house of his sister, at that time, he heard some noise from the shop of Dost Mohammad. When he went there, he saw Smt. Saroj was weeping while standing outside the STD shop of Dost Mohammad. He saw that manhandling was going on outside as well as inside the shop between accused persons namely Rashid, Mohsin, Parvez, Haarishh, Dost Mohammad and Liyakat Ali and Rahimuddin. Blood was oozing out from the back side head of Rahimuddin. He also saw that accused Parvez was holding broken glass bottle in his hand. When he started intervening in the matter to save Rahimuddin and Liyakat Ali, all the accused started uttering "maaro saale ko" and at that time they all gave State Vs. Aish Mohd. & Ors. Page no. 51 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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beatings to Liyakat Ali and Rahimuddin. He was also beaten by the accused persons and he sustained injuries on his right hand elbow and got stitches on the wound at AIIMS hospital. Liyakat Ali and Rahimuddin were taken to Modi Hospital by the villagers.
He during his cross-examination deposed that his statement was recorded by the police at about 12:00 midnight at AIIMS hospital on the same night of the incident. Prior to the incident, he knew accused Dost Mohammad and Mohd. Rashid as they are residing in the same locality. Liyakat Ali, Saroj and Nawabuddin were also residing at H. No. 280, Hauz Rani, Delhi where he was residing. The STD shop of Dost Mohammad is situated at the distance of about 25-30 yards from his house. He deposed that Liyakat Ali is his grand nephew / bhanja and Saroj is his wife. He knows Rahimuddin as he is also residing in the same locality. He was confronted with his statement Ex.PW14/DX, where it is not recorded that all the accused uttered "maaro saale ko" and they all gave beatings to Liyakat Ali and Rahimuddin. He again said that accused Dost Mohammad uttered "maaro saale ko". He was confronted with State Vs. Aish Mohd. & Ors. Page no. 52 of 71 Digitally signed by KIRAN KIRAN Date:
GUPTA GUPTA 15:13:19 2025.09.08 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR his statement Ex.PW14/DX, where it is not recorded that he was beaten by the accused persons and he sustained injury on his right hand elbow. He denied the suggestion that on 04.09.2005, he alongwith Liyakat Ali and 5-7 of their associates attacked on the bus of Parvez and snatched the documents of the bus. He denied that Parvez ran away from there to save themselves and they followed him. He denied that at that time Liyakat Ali, Wahauddin, Nadeem and Usman were having dandas and iron rods in their hands and they reached to the shop of Dost Mohammad by following Parvez and gave danda blow on the glass of STD shop of Dost Mohammad and broke the glass of shop and broke the various articles and robbed Rs.7,000/-. He denied all the other suggestions given by the Ld. Defence Counsel.
14. On careful perusal of the testimony of PW5 and PW13, it is evident that all the five accused persons were already sitting in the STD shop of one of the accused namely Aish Mohd.
@ Dost Mohd, when PW5 Liyakat Ali alongwith his wife PW13 Saroj and deceased Rahimuddin went to the STD shop of accused Aish Mohd. PW5 and PW13 have deposed that during State Vs. Aish Mohd. & Ors. Page no. 53 of 71 Digitally signed KIRAN by KIRAN GUPTA GUPTA 2025.09.08 Date:
15:13:24 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR the time they were strolling in the street after taking dinner with Rahimuddin, they went to the shop of accused Aish Mohd as PW13 Saroj wanted to make call to her parental house. When PW13 went inside the shop to make call, PW5 and Rahimuddin were standing outside the shop and some quarrel ensued between them and accused persons who were already present in the shop. The quarrel was spontaneous. As per the case of prosecution, there was some dispute regarding contractorship of the bus going on between Liyakat Ali and accused Parvez, however, except the incident dated 04.09.02, nothing has come up on record to show that there was some active dispute going on between the parties.
15. Section 143 IPC prescribes punishment for being a member of an unlawful assembly, which involves five or more persons with a common unlawful object. Under S. 149 IPC, the prosecution has to prove that the act constituting an offence was done in furtherance of the common object of that assembly or the act done is such, as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Since section 149 IPC imposes a constructive penal liability, it is important to find out, if the offence was State Vs. Aish Mohd. & Ors. Page no. 54 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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committed to accomplish the common object of the assembly or was one which the member knew to be likely to be committed.
There must be a nexus between the common object and the offence committed and, if, it is found that the same was committed to accomplish the common object, then every member of the assembly would become liable for the same. If the member of the assembly knew or were aware of the likelihood of a particular offence, being committed in prosecution of the common object, they would be liable for the same u/S. 149 IPC. The first clause of S. 149 IPC contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had the knowledge of likelihood of the commission of that offence in prosecution of the common object.
16. In the present case, no evidence has been lead by the prosecution to prove that the accused persons were sitting with the preparation in the STD booth or had any intention or motive State Vs. Aish Mohd. & Ors. Page no. 55 of 71 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2025.09.08 15:13:40 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR to cause death of Rahimuddin. From the testimony of PW5 and PW13, it is evident that it is they who alongwith the deceased went to the shop of accused Dost Mohd., where all the other accused persons were already sitting. As discussed above, PW5, PW13 & deceased were not called to the shop by the accused persons but they themselves went to the shop as PW13 wanted to make a call. The accused persons were already sitting inside the shop, hence, the allegation of forming the unlawful assembly by the accused persons to accomplish some common object is ruled out in the present case.
17. PW5 & PW13 are the eye witnesses to the incident. PW5 during his testimony has deposed that while he alongwith Rahimuddin were standing outside the STD booth, accused Parvez, Dost Mohd, Rashid, Mohsin and Haarish, who were sitting inside the STD booth, came outside the STD booth and accused Parvez started abusing him and used filthy language. Accused Rashid gave a fist blow on his face and Dost Mohd exhorted "maaro salo ko, jo hoga main dekh lunga". However, Liyakat Ali in his initial complaint, on the basis of which the present FIR has been lodged, stated that Dost Mohd said "maaro State Vs. Aish Mohd. & Ors. Page no. 56 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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salo ko". He was duly confronted with his initial statement during his cross-examination, wherein the words "jo hoga main dekh lunga" are not mentioned. He further deposed that Mohsin caught hold of him, while Haarish caught hold of Rahimuddin. Parvez went inside the booth and picked up a glass bottle and hit it on the wall to break it and after breaking the bottle, hit on the back head of Rahimuddin with the broken bottle. After being hit, Rahimuddin fell down and started bleeding.
18. PW13 Saroj who is the other eye witness deposed that accused Rashid gave fist blow on the face of her husband. Thereafter, Mohsin caught hold of her husband and Haarishh caught hold of Rahimuddin. Thereafter, accused Parvez after picking a Pepsi bottle, gave its blow on the back side of the head of Rahimuddin. Blood started oozing out from the wounds of Rahimuddin. After seeing the blood, she wanted to raise the alarm but could not raise the same because she was perplexed. Parvez also gave blow with the Pepsi bottle on the head of her husband Liyakat Ali and blood started oozing out from the temporal region of her husband. Thereafter, she alongwith some villagers took her husband and Rahimuddin to Modi Hospital.
State Vs. Aish Mohd. & Ors. Page no. 57 of 71
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19. There is contradiction in the testimony of PW5 & PW13. PW5 has deposed that Parvez after picking the bottle, hit it against the wall and after breaking the bottle, hit on the back head of Rahimuddin with the broken bottle. However, PW13 has deposed that accused Parvez after picking the Pepsi bottle gave a blow on the back side of head of Rahimuddin. She has not deposed that Parvez after picking the bottle broke it by hitting it against the wall and thereafter hit Rahimuddin with the said broken bottle. She deposed that Parvez also gave blow with the pepsi bottle on the head of Liyakat Ali, however, Liyakat Ali has not deposed that he was also hit by the said broken bottle by Parvez. Even there is no MLC of Liyakat Ali that he suffered any injury on his temporal region due to the hit by bottle by accused Parvez.
20. The prosecution has also relied upon the testimony of PW10 Kishan who stated that he had also witnessed the incident, however, during his cross-examination, he deposed that he did not witness the incident but has deposed at the instance of State Vs. Aish Mohd. & Ors. Page no. 58 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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the IO, who asked him to depose whatever is stated in his statement. The said witness has turned hostile during his cross- examination. Further, there is no evidence on record to show that he is the eye witness to the incident as his name has not come up in the testimony of eye witnesses to the extent that he was present at the spot at the time when accused Parvez hit Rahimuddin with the bottle on his head. As per PW13, she raised alarm after the accused Parvez hit Rahimuddin with bottle and the public gathered after that.
21. The prosecution has also relied upon the testimony of PW1 Rahisuddin and PW14 Gulsanovar. As per prosecution, both these witnesses reached the spot together on hearing the noise, however, there is discrepancy in their statement. PW14 deposed that when they reached the spot he saw that some manhandling was going on outside as well as inside the shop of accused persons and Liyakat Ali and Rahimuddin and blood was oozing from the back side head of Rahimuddin. He saw accused Parvez was holding the broken glass bottle in his hand. He did not depose that at that time accused Parvez hit Rahimuddin with State Vs. Aish Mohd. & Ors. Page no. 59 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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the glass bottle. On the contrary, PW Rahisuddin deposed that Parvez hit bottle on the back side of his brother Rahimuddin.
22. There is also discrepancy in the testimony of PW5 and PW13 that accused Parvez first broke the bottle and then hit the deceased with the same on his head, however, the testimony of these two witnesses has been cogent and corroborating to the extent that it is accused Parvez who hit the deceased with the glass bottle on his head during the fight. As per the MLC Ex.PW18/A and postmortem report Ex.PW2/A, it is evident that the deceased suffered one single external injury on his head which caused cranio cerebral injury, resulting in his death. In the present case, the single injury as per the postmortem report is sufficient in the ordinary course of nature to cause the death. The weapon of offence used is the glass bottle which was lying in the shop during the incident. There is no evidence that the accused persons procured any weapon or the said glass bottle from outside. PW5 & PW13 have categorically deposed that accused Parvez picked the glass bottle lying in the shop and hit on the back head of Rahimuddin. The accused Parvez gave only single blow on the head of Rahimuddin with the said bottle. Though, State Vs. Aish Mohd. & Ors. Page no. 60 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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witnesses have deposed that accused Haarish had caught hold of Rahimuddin when Parvez hit him with the bottle,however, there is no evidence that both accused Parvez and Haarish had the common intention or object to cause death of Rahimuddin with the said bottle. After inflicting the single blow on the head of Rahimuddin, there is no other blow or injury caused to him with the said bottle. The broken bottle has not been recovered by the IO and is not part of the case property. PW2 and PW18 have deposed that they did not notice or found any foreign object on the wound of Rahimuddin or on the sheet of injury. They did not find any traces of foreign object after opening the suture wound. As per postmortem report Ex.PW2/A, the cause of death is cranio cerebral injury caused by blunt force impact. The injury with the bottle as per the prosecution witnesses was caused by accused Parvez. The testimony of PW5 & PW13 that accused Parvez hit Rahimuddin with the glass bottle is in consonance with the PM report Ex PW2/A and testimony of PW2 and PW18. As discussed above, the quarrel was spontaneous and occurred when PW5, PW13 and deceased went to the shop of accused Aish Mohd where all the accused persons were already present.
State Vs. Aish Mohd. & Ors. Page no. 61 of 71
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23. On the overall assessment of the situation and testimony of the prosecution witnesses, the circumstances under which the accused Parvez happened to inflict the injury, it is felt that all his mental faculties could not have been roused as to form an intention to achieve the particular result, more specifically due to the fact that he did not hit deceased Rahimuddin with the sharp edges of the broken bottle either on the head or any other part of the body of Rahimuddin.
24. The cause of death is the single blow by the glass bottle on the head of the deceased. There is no straight jacket formula that a single blow on even vital part of the body would make the accused guilty of the offence culpable homicide not amounting to murder. Clause thirdly to S. 300 consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and second part that the said injury is sufficient to case death in the ordinary course of nature. Under the first part, the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part, whether it was sufficient to caused death is a objective inquiry and it is State Vs. Aish Mohd. & Ors. Page no. 62 of 71 Digitally signed by KIRAN KIRAN GUPTA Date:
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matter of inference from the particulars of the injury. The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances such as the weapon used, the force used for attack, multiplicity of injuries and all other surrounding circumstances. When an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.
25. In Mahesh Balmiki alias Munna Vs. State of M.P. 2000 (1) SCC 319, the Supreme Court observed as below:-
"Adverting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of single blow Section 302 I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The State Vs. Aish Mohd. & Ors. Page no. 63 of 71 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2025.09.08 15:14:24 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him."
26. The Supreme Court of India, in Criminal Appeal No. 2043 of 2023 Anbazhagan Vs. The State represented by the Inspector of Police, decided on 20.07.2023, differentiated between word 'intent' and 'knowledge' observing that intention which is a state of mind can never be precisely proved by direct evidence as a fact; it can only be deduced or inferred from other facts which are proved. The intention may be proved by res- gestae, by acts or events previous or subsequent to the incident or occurrence. The relevant consideration may include nature of weapon used, place where injury was inflicted, nature of injury, the opportunity available to the accused.
State Vs. Aish Mohd. & Ors. Page no. 64 of 71 Digitally signed by KIRAN KIRAN Date:
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27. In Dayanand Vs. State of Haryana AIR 2008 SC 1823, it has been held as follows:
"10. The crucial question is as to which was the appropriate provision to be applied. In the scheme of the IPC 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 of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest 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.
12. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential State Vs. Aish Mohd. & Ors. Page no. 65 of 71 Digitally signed KIRAN by KIRAN GUPTA GUPTA 2025.09.08 Date:
15:14:32 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300.
13. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature to cause death" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause
(b) of Section 299 conveys the sense of probable as State Vs. Aish Mohd. & Ors. Page no. 66 of 71 Digitally signed by KIRAN KIRAN Date:
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result of the injury, having regard to the ordinary course of nature.
14. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and Anr. v. State of Kerala, (AIR 1966 SC 1874) is an apt illustration of this point."
28. In Ankush Shivaji Gaikwad vs. State of Maharashtra (2013) 6 SCC 770, wherein the death was caused by an iron pipe and due to exchange of hot words, the Supreme Court held that the murder would be punishable under S. 304 Part II IPC. The Court held that the nature of the injury inflicted , the part of the body on which it was inflicted, the weapon used to inflict the same and the circumstances in which the injury was inflicted, do not suggest that the accused had the intention to kill the deceased. All that can be said is that the accused had the knowledge that the injury inflicted by him was likely to cause death of the deceased. The case would, therefore, more appropriately fall under S. 304 Part II IPC.
State Vs. Aish Mohd. & Ors. Page no. 67 of 71
Digitally
signed by
KIRAN
KIRAN GUPTA
GUPTA Date:
2025.09.08
15:14:42
+0530
FIR No. 784/2005
PS: MALVIYA NAGAR
29. In the present case, there is no evidence that the accused persons had come prepared or were sitting prepared with some object which may properly fall in category of a weapon. This is not a case where after the altercation, accused persons had come again with a plan in their mind. In this case, the impact of the single blow of glass bottle caused injury on the head of deceased. The single injury was caused by a glass bottle, which is not a hand held weapon. The facts and circumstances exclude the proposition that the accused persons did the act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death. But the existence of injury on the vital part of the body i.e. the head by the accused Parvez is duly proved.
30. Now, the question is whether circumstances warrant conclusion that accused Parvez and other accused persons intended to cause such an injury which had actually been caused or whether they had the requisite knowledge that they will cause such an injury which may ultimately cause death. Most fundamental formula which may be applied for deducing the requisite intention or knowledge, is whether the accused persons State Vs. Aish Mohd. & Ors. Page no. 68 of 71 Digitally signed by KIRAN KIRAN Date:
GUPTA GUPTA 2025.09.08 15:14:47 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR were aware of the consequences which shall follow or likely to follow as a direct consequence of their act. As discussed above, the prosecution has failed to prove the unlawful assembly and requisite intention of the accused persons to commit an offence. All the witnesses in their initial statement have stated that accused Aish Mohd. exhorted 'maaro saalo ko', which is a generic word asking the others to beat the other person. However, all the prosecution witnesses improved their statement in the court by deposing that accused Aish Mohd. exhorted 'maar do saalo/saley ko, jo hoga dekh lenge/main dekh lunga'. They were duly confronted with their respective statement, where only the word 'maaro saalo ko' is stated. Thus, the prosecution has failed to prove that the other accused persons acted on the command of accused Aish Mohd. to commit the murder of Rahimuddin.
31. The prosecution through the testimony of PW5 and PW13 has proved that it is the accused Parvez who had hit with the glass bottle on the head of the deceased which is the vital part of the body, hence, it is presumed that he had the knowledge that certain specified harmful consequences would or could follow. In the present case, such an awareness of the direct consequences State Vs. Aish Mohd. & Ors. Page no. 69 of 71 Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2025.09.08 15:14:52 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR and the higher degree of probability can be attributed to the accused Parvez only. Though, the prosecution has also relied upon the MLC of PW14 Gulsanovar Ex.PW24/A, however, his deposition to the effect that all the accused persons beat him and caused injuries is in contradiction and rather improvement of his earlier statement Ex.PW14/DX.
32. In view of the above discussion, the prosecution has miserably failed to prove that all the accused persons were sitting with the preparation or had formed unlawful assembly to cause hurt to the complainant or had any intention or motive to cause death of Rahimuddin and injury to PW14 Gulsanovar. Accordingly, all the accused persons are acquitted for the offences under S. 143/149/302/201/323 IPC.
33. However, the prosecution has proved that it is the accused Parvez who hit on the head of deceased with the glass bottle which is the vital part of body, hence, it is presumed that he had knowledge and awareness of the direct consequences of such an impact, hence, he is convicted for the offence under S. 304 Part II IPC.
State Vs. Aish Mohd. & Ors. Page no. 70 of 71 Digitally signed by KIRAN KIRAN Date:
GUPTA GUPTA 2025.09.08 15:14:57 +0530 FIR No. 784/2005 PS: MALVIYA NAGAR CONCLUSION The accused persons namely Aish Mohd. @ Dost Mohd., Rashid, Mohsin Khan and Mohd. Harish are acquitted for all the offences in the present case. Accused Parvez is acquitted for all the other offences, but is convicted for the offence under S. 304 Part II IPC.
Digitally signed by KIRAN KIRAN Date:
GUPTA GUPTA 2025.09.08 15:15:04 +0530 ANNOUNCED IN THE OPEN (KIRAN GUPTA) COURT ON 08.09.2025 ADDL. SESSIONS JUDGE-04 NEW DELHI DISTRICT PATIALA HOUSE COURTS NEW DELHI State Vs. Aish Mohd. & Ors. Page no. 71 of 71