Delhi District Court
State vs Manish Yadav on 22 March, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SC No. 253/2018 CNR No. DLCT01-004652-2018
FIR No. 104/2017
Under Section: 308/174A/34 IPC
PS: Bara Hindu Rao
STATE VERSUS MANISH YADAV & ANR.
(i) SC No. of the case : 253/2018
(ii) Date of commission of offence : 25.09.2017
(iii) Name, parentage and address : 1. Manish Yadav
of accused S/o Sh. Suchinder Yadav
R/o Village Saidpur, PS
Manshi, Distt. Khagriya
(Bihar)
2. Sultan Yadav
Sh. Arun Yadav
R/o Village Saidpur, PS
Manshi, Distt. Khagriya
(Bihar)
(iv) Offence complained of : u/Sec. 308/174A/34 IPC
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : Both accused are
convicted under Section
324/34 IPC and accused
Sultan Yadav stands
acquitted for the
offence under
Section 174A IPC.
SC No. 253/2018
FIR No. 104/2017
State Vs. Manish Yadav & Anr. Page 1 of 31
Date of Institution : 04.04.2018
Date of Judgment reserved on : 05.03.2025
Date of Judgment : 22.03.2025
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of Sh. Shankar Yadav/PW-1 vide complaint Ex.PW1/A. It is stated in the complaint that PW-1 does work of loading and unloading various goods and driving hand carriage/thela. It is stated that around 10:00 PM on 24.09.2017 when PW-1 had returned after viewing Ram-Leela at Lal Quila, Delhi then accused Manish and accused Sultan met PW-1. They had verbal altercation and after which both the accused had left away. PW-1 returned to Azad Market Library Road in front of shop no.139 and on the pavement he slept. On 25.09.2017 at about 4:00-5:00 AM in the morning when it was dark hours then suddenly accused Manish and accused Sultan reached there and started abusing PW-1. Immediately thereafter both the accused had picked the brick pieces lying there and hit it on the head of PW-1. When PW-1 had raised noise then both the accused ran away from the spot. Both the accused are related to the PW-1 as they are sons of uncle of PW-1.
2. On the complaint FIR was registered vide Ex.C-1 and the certificate under Section 65B of Evidence Act on such registration of FIR is Ex.C-3. Information was received at PS at 6:00 AM on 25.09.2017. The photograph recorded by CCTV showing both the accused hitting the PW-1 on head is SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 2 of 31 Ex.PW1/B. However DD No.9A dated 25.09.2017 Ex.C-4 was recorded at 6:10 AM that PW-1 Shankar Yadav was admitted at Hindu Rao Hospital who got injured in a fight near shop no.139 Delhi. The uncle of the injured Mr. Kishori Rajak had got the injured admitted. Hence the injured was admitted sooner at the hospital and DD No.9A Ex.C-4 was recorded by HC Pawan Kumar. The site plan Ex.PW2/E was prepared at the instance of PW-2 Sh. Kishori Rajak where violence was committed on PW-1. Another site plan Ex.PW8/A which is the pointing out memo by accused Manish of the piece of brick with accused Sultan with which accused had hit PW-1/Shankar Yadav. The pointing out memo of the shop No.139 at the pavement where PW-1 was hit is Ex.PW2/B which was prepared at the instance of accused Manish that he and accused Sultan had hit with brick on the head of PW-1 and injured PW-1. The similar pointing out memo of accused Sultan Yadav is Ex.PW6/B. Seizure memo of brick is Ex.PW2/F.
3. The Ex.C-5 is DD No.20A which is the information about recording of the incident in the CCTV footage showing two men hitting victim by bricks and two time by knife. The seizure memo of pen-drive is Ex.PW3/A which are two pen-drives of 8 GB each one of which is of Sandisk and another is of make HP. The video footage was taken out by the owner of the CCTV recording namely Sh. Vinod Talib/PW-3. The recording is pertaining to 25.09.2017 around 3:59 AM which was of 24 seconds. The hard copy of pen-drive is Ex.PW3/1. The disclosure statement of both the accused Sultan and Manish are Ex.PW6/A and Ex.PW2/C, respectively.
4. After registration of the case police had investigated the case and filed the chargesheet against both the accused who were summoned for SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 3 of 31 trial.
5. Charge was given to both the accused namely Manish and Sultan Yadav under Section 308/34 IPC on 06.06.2018 to which they had pleaded not guilty and claimed trial. Accused Sultan Yadav was given further separate charge under Section 174A IPC dated 06.06.2018 to which he had pleaded not guilty and claimed trial. Prosecution has examined PW-1 to PW-13 as entire prosecution evidence against both the accused. Statement under Section 313 Cr. PC of both the accused Manish and Sultan Yadav was recorded on 27.03.2024. Accused have led evidence as DW-1 and on separate statement of learned Counsel for both the accused DE was closed on 25.07.2024. Both the accused have admitted FIR Ex.C-1, Rukka Ex.C-2, certificate under Section 65B of Evidence Act pertaining to FIR Ex.C-3, DD No.9A Ex.C-4, DD No.20A Ex.C-5, PCR Form Ex.C-6, seizure memo of blood gauge Ex.C-7 and road certificate dated 23.10.2017 Ex.C-8. Both the accused had admitted and did not dispute above documents.
6. Final arguments are heard from both the parties and record perused.
7. To prove the offence the prosecution is required to establish the ingredients laid down under Section 308 IPC at para No.19 of citation titled Bali v. State Through Government of NCT in CRL.A.36/2021. The relevant para 19 is reproduced hereasunder:
"19. A bare reading of Section 308 IPC would show that to prove the commission of an offence thereunder, two ingredients are required to be established:SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 4 of 31
(i) that an act was committed, and
(ii) that the act was committed with such intention or knowledge and under such circumstances that, if death was caused by the act, the accused would be guilty of culpable homicide not amounting to murder."
8. Hence the prosecution has to prove as under:
1. The accused has committed a wrongful act.
2. Such wrong act was carried/committed out with such an intention or knowledge if death was caused by such an act.
3. The act was committed under such circumstances that, if death was caused by the act, the accused would be guilty of culpable homicide not amounting to murder.
9. Hence the first ingredient the prosecution has to prove is that the accused has committed a wrongful act which comes within Section 308 IPC. The PW-1 has deposed that a few days back from the date of incident both the accused were quarreling with somebody else on which PW-1 Sh. Shankar Yadav had to intervene to separate them. Both the accused were aggrieved due to such intervention. However this fact was not mentioned by PW-1 in complaint Ex.PW1/A on the basis of which FIR was registered and hence PW-1 has improved upon his deposition. PW-1 has deposed that he had regained consciousness in hospital whereas in his complaint Ex.PW1/A it is stated that when both the accused had lifted the brick and hit on the head of PW-1 then PW-1 had raised alarm by shouting due to which both the accused ran away from the spot. In the complaint Ex.PW1/A it does not records that PW-1 had became unconscious. PW-1 has improved upon his deposition that he got unconscious by such hit. PW- 1 was confronted with his statement Ex.PW1/A which is complaint where SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 5 of 31 it is not recorded that few days prior to the incident there was quarrel between both the accused and one another person in which PW-1 had intervened on which the accused were agitated.
10. There was no dispute as to identity of accused since accused were related to PW-1 who were staying in the same village. The ld. APP for the State has declared PW-1 hostile. PW-1 has deposed that the accused person returned at 4-5:00 AM in the morning who picked up a brick piece lying on the road and inflicted injuries on PW-1 after which the accused person ran away. PW-1 was sleeping when injuries were inflicted. The said incident was recorded in CCTV footage/Ex.PW1/B which was shown to PW-1 by the police. It shows presence of accused no. 1 Manish at point X1 and that of accused no. 2 Sultan at point encircled X2. Accused Sultan is wearing white T-shirt. The police had arrested the accused Sultan at the instance of PW-1. Both the accused were correctly identified before the Court. The PW-1 had identified the brick piece Ex.P-1 with which he was got hit.
11. PW-2 Sh. Kishori Rajak doing job of Palledari (loading and unloading of goods). On 25.09.2017 when he was sleeping in front of shop no. 10209, Azad Market then accused person woke him up and informed that PW-1 was lying injured in front of shop no. 139. PW-2 reached at the spot and he had seen that PW-1 was lying injured in unconscious condition on a Thela with blood oozing out from his head. PW-2 picked PW-1 and put him in a Champion vehicle and the driver of the said vehicle took him to Hindu Rao hospital where PW-2 got admitted PW-1 in the hospital. On the same day police has called PW-2 at police station and recorded his statement. PW-2 was made to sign various documents at police station SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 6 of 31 contents of which he did not know. PW-2 had turned hostile and denied having received information from PW-1 that both the accused were related to PW-1 who had hit the PW-1 with brick. It is recorded in statement of Ex.PW2/PX1 at point A to A1. Accused no. 1 was arrested on pointing out by PW-2 when he was standing at bus stand. The person who was along with accused Sultan had inflicted head injury on PW-1 with a brick piece and despite confrontation with statement Ex.PW2/PX1, PW-2 continued to deny the story of prosecution regarding arrest of accused no. 1 and such hitting by brick piece. It is admitted by PW-2 in cross-examination that he is not eye witness to the incident. It is admitted as correct that PW-1 was unconscious when he reached at the site. He did not point out accused no. 1 to the police and PW-1 the victim never informed PW-2 about the name of the person who had caused injuries upon PW-1. The site plan is Ex.PW2/B. The broken piece of brick which was blood stained was picked by the police from the spot and seized vide memo Ex.PW2/F. PW-2 has correctly identified the piece of brick as Ex.P1 and he had also identified both the accused present in the Court. Since PW-2 is not eye witness to the incident therefore his identifying the accused before the Court has no value. However soon after the incident PW-2 had taken the victim PW-1 to the hospital when PW-1 was lying unconscious in front of shop no. 139 on his Thela and blood was coming out from his head. It is a relevant fact that PW-1 was injured on such date and time and PW-2 had taken PW-1 to hospital.
12. PW-3 Sh. Vinod Talib has deposed that he had installed three CCTV camera and he had supplied CCTV footage dated 25.09.2017 after about 3:59 AM for about 24 second to the IO. The two pendrive of make Sandisk SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 7 of 31 and of make HP both of which were of 8 GB were seized by the IO vide seizure memo Ex.PW3/A and the certificate in regard to such pendrive under Section 65B of Indian Evidence Act is Ex.PW3/B. The two photographs of such hitting by the accused on PW-1 is Ex.PW1/B on record in which two person were seen hitting another person on head with piece of brick when such another person/PW-1 was sleeping on Thela. One of the photograph is of 3:59:19 hrs. and another was 3:59:23 hrs. One of the pendrive of make Sandisk is identified by PW-1 as Ex.PW3/1. In cross- examination it is deposed by PW-3 that the said footage has already been deleted from the camera as it was 15-20 days old and the hard disk has limited storage capacity. Ld. Counsel for accused has argued that the original hard disc must have been sent to FSL and same must have been produced before the Court in absence of which this pendrive cannot be relied upon which is Ex.PW3/1. The above submission of accused is rejected for the reason that there is no mandatory requirement to produce original DVR before the Court and the CCTV footage can be proved as per law laid down under Section 65B of Indian Evidence Act. Accused must show that what are the deficiency under law in such footage. Accused has failed to point out the same. The certificate under Section 65B of CCTV footage is Ex.PW3/B proved by PW-3 and no infirmities can be pointed out in the evidence of PW-3 by the accused after completion of such evidence of PW-3.
13. Other than this PW-4 Dr. Bharti Bhardwaj, Sr. Scientific Officer, FSL has deposed that one parcel was marked to him on opening of which a pendrive of make HP capacity of 8 GB containing a video footage MP4 was found. This pendrive was examined by him in laboratory. The video SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 8 of 31 file contain continuous video footage and there was no indication of altercation in the continuous video footage. The report Ex.PW4/A was prepared on frame to frame examination. After examination the pendrive was sealed with the seal of 'DrBBFSL'.
14. One fact to be noted is that PW-3 has proved pendrive of make Sandisk as Ex.PW3/1 and he has not identified the pendrive of make HP which has come in the evidence of PW-4. The pendrive of Sandisk was not sent for FSL examination. As per deposition of PW-10 in examination-in- chief dated 26.08.2022 at page 3 and 4 both the pendrive have same CCTV footage due to which PW-10 has deposited HP pendrive with MHC(M) and attached the Sandisk pendrive with the case file. Hence PW-3 has not identified the HP pendrive which he had given to IO for sending the same to FSL. It is noted that during examination-in-chief of PW-4 proper seal on pendrive of make HP pertaining to FSL which is "DrBBFSL" is not proved. PW-4 has also not proved that with what mark of seal he had received the pendrive of make HP. PW-4 has given his report as Ex.PW4/A. The seal of KPS of the IO is proved by PW-4 in its report Ex.PW4/A. The report Ex.PW4/A is that the CCTV footage in pendrive marked Ex.1 was a continuous video footage with no indication of alteration on the basis of frame by frame examination. Hence continuity of CCTV footage is proved in the evidence of PW-4. The giving of such pendrive with video footage to the IO is proved by PW-3. The submission of such pendrive with FSL is proved by the IO SI Kiran Pal. Hence prosecution has successfully proved that the CCTV footage was properly extracted and it contained true contents in untampered condition. The accused has failed to point out any infirmities in extraction of the video footage or examination of such video SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 9 of 31 footage by the FSL. The argument of ld. Counsel for accused that the IO had not sent the pendrive of make Sandisk for forensic examination does not harm the case of the prosecution in view of deposition of PW-10 that both the pendrives contained the same CCTV footage due to which IO had sent only one CCTV footage for examination to the FSL.
15. PW-5 Dr. Amita Raghav from FSL, Biology has deposed that two sealed parcels were marked to her. The said parcels were found containing one gauge cloth piece having brown stains which is Ex.1 sealed with the seal of 'HRH' (in FSL report Ex.PW5/A) and the another parcel were found contained one broken brick having dirty stains which is Ex.3 sealed with seal of 'KPS'. The result of biological examination was that blood was detected on both Ex.1 and Ex.3 and the DNA isolation profile from both the exhibits was similar. The identifier plus kit was used for PCR amplification and data was analysed by Gene Mapper IDX software. The remnants of exhibit were sealed with the seal of FSL Am.R DELHI. It is deposed in cross-examination that PW-5 had used 16 markers identifier kit. Hence PW-5 has proved that the brick seized from the spot had contained the same blood of victim/complainant/PW-1. The piece of brick was seized by the IO/ASI Samender Singh at the instance of accused. The disclosure statement of accused no. 1 Manish is Ex.PW2/C. Accused no. 2 was arrested at the instance of accused no. 1. The disclosure of accused no. 2 Sultan is Ex.PW6/A. In both the said disclosure none of the accused has told that they can get recovered the article of offence which is the brick. The seizure memo of brick is Ex.PW2/F which does not mention that it was recovered at the instance of accused. The alleged site plan Ex.PW8/A regarding the recovery of brick was prepared at the instance of accused no.
SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 10 of 311 whereas the site plan does not bear any signature of the accused. Hence it cannot be said that the seizure memo of brick and the site plan of the brick as to its recovery was prepared at the instance of accused no. 1 Manish. Hence this recovery of piece of brick is not admissible under Section 27 of Indian Evidence Act as such particulars has to be stated by the accused in his disclosure which can identify the object of recovery and the place of recovery whereas no such statement/disclosure is proved by the prosecution on record in Ex.PW2/C. However it is noted that the recovery of brick is on the same day on 25.09.2017 which is the date of incident and therefore the recovery is very near to the date of incident. PW-1 had became unconscious as per his own statement after he was assaulted by the accused person and therefore it is difficult to say that PW-1 could have identified such brick.
16. Even though PW-1 could not identified the brick and the prosecution witness PW-8 and PW-10 have failed to prove the recovery under Section 27 of Indian Evidence Act then also the evidence of PW-5 proves that this brick was having blood of the victim/PW-1 which was recovered soon after the spot of crime in presence of PW-8. The photograph of CCTV footage is Ex.PW2/B in which two person are seen hitting the person sleeping on cart with a brick. In another photograph the person wearing white shirt was seen hitting the sleeping person/victim with some article. The two photographs are from CCTV footage Ex.PW1/B showing presence of accused no. 1 at point X1 and of accused no. 2 Sultan at point X2. Accused Sultan was wearing white T-shirt. Hence the prosecution has successfully proved the CCTV footage in which both the accused were seen hitting the PW-1 with a brick and therefore it sufficiently proved that the victim/PW-1 was got hit by accused person with a brick which is further corroborated by evidence SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 11 of 31 of PW-5 from FSL. No infirmities are found in evidence of the above prosecution witness. The CCTV footage is proved by PW-3.
17. There is no recovery of knife from the accused person though it is case of the prosecution that the victim was also got a hit by a knife. However such injury by knife are not proved in evidence of PW-11. In evidence of PW-11 it has not come on record that the two injury on PW-1 one of which was on forehead and two abrasion over chest were caused by a knife. The MLC of PW-1 is Ex.PW11/A. The lacerated wound over forehead was approximately 3x1 cm and two abrasion over chest were approximately 1x1 cm each. The opinion is not that such injuries were caused by a sharp object with a sharp cut. The PW-12 Dr. Shantanu Singh Chauhan has given opinion that no bone injuries are seen in X-ray films Marked PW12/A and PW12/B and the radiology report in this regard is Ex.PW12/C. PW-13 had identified writing and signature of Dr. Avtar having seen him writing and signing in reference to MLC Ex.PW11/A. He has deposed as record Clerk. In his presence PW-1 was produced before Dr. Avtar. Hence only one injury is proved on head from which blood came out which was found on the brick. If there had been any injury by knife then blood must come out from that injury but no such fact was proved on record. Hence prosecution has failed to prove injury by knife on PW-1 by any of the accused.
17.1 The accused has produced sole evidence in defence as DW-1 Sh. Brijesh Kumar who has deposed that he alongwith PW-1 alongwith both the accused went to fair in the year 2017. The PW-1 with 4-5 person started quarreling with both the accused and beaten them. Accused no. 1 Manish SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 12 of 31 started bleeding on which they went to PS Bara Hindu Rao. Police did not lodge any complaint. PW-1 threatened the accused Manish with dire consequences and even threatened to kill him. DW-1 is also resident of the same village as the accused and the complainant. He does not remember the name of 4-5 person came with PW-1. The reason for quarrel was land dispute between the PW-1 and both the accused. However DW-1 could not produce any document to this effect. This incident of beating both the accused by PW-1 had happened in the presence of DW-1. Accused no. 1 Manish was bleeding from his head. They had went to PS Bara Hindu Rao at about 6:30 PM. He had also taken the accused no. 1 to the doctor. No complaint was made to SHO/ACP nor any complaint in the Court was filed. However the MLC of accused Manish dated 27.09.2017 records that no fresh external injury marks were present. The MLC of accused no. 1 is dated 26.09.2017 at about 1:50 PM which appears to be morning of 27.09.2017 i.e. 1:50 AM keeping in view the deposition of PW-1. This record is filed by the prosecution though not exhibited. Accused Manish was brought for medical examination and no fresh injury were found on him. Similarly on MLC of accused Manish dated 25.09.2017 at about 11:15 PM records no fresh injuries on him. Hence the accused person have failed to prove injuries on them and therefore evidence of DW-1 in this regard cannot be relied upon. At least some evidence could have been produced by accused person in this regard to show that they had received injuries. Even otherwise the law does not allow the citizens to take the law in their hands. In these circumstances the evidence of DW-1 does not help the case of the accused person.
18. Hence prosecution has successfully proved first ingredient of the SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 13 of 31 offence that the accused person have committed wrongful act of hitting the victim by brick at about 4 AM on 25.09.2017 at footpath in front of shop no. 139, Library road, Azad Market, Delhi. Though it is not a requirement under Section 308 IPC that hurt should have been caused to the victim.
19. Another ingredient the prosecution has to prove that by such wrongful act accused had intention or knowledge if death was caused by such an act. No doubt that if a person was hit with a brick the death could have been caused. In the present case PW-11 has proved one injury only on the head from which blood came out measuring 3x1 cm and two abrasion over chest of approximately 1x1 cm each. The MLC Ex.PW11/A proves the nature of weapon used was blunt and victim was fit for statement on 25.09.2017. Smell of alcohol was present and there was bleeding from nose and swelling over head. The opinion in Ex.PW11/A is that nature of injury was grievous. The grievous injury has to be proved as per law laid down under Section 325 and Section 326 IPC. Merely stating on record that the injury is grievous is not sufficient and it is incumbent upon the prosecution that the injury was in the nature defined under Section 326 IPC. The relevant citation titled Mathai Vs. State of Kerala is reproduced hereasunder:
Neutral Citation: 2005 INSC 30 Supreme Court of India Criminal Appeal No. 89 of 2005 (Arising out of SLP (Crl.) No. 2285/2004) Mathai vs. State of Kerala (12.01.2005 - SC) :
MANU/SC/0035/2005
10. Section 325 deals with punishment for voluntarily causing grievous hurt.
11. Section 326 deals with offence of voluntarily causing hurt by dangerous weapons or means.
12. Section 326 provides that whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 14 of 31 any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and also with a liability to pay a fine.
13. Sections 325 and 326, like the two Sections immediately preceding, provide the ordinary punishment and punishment under certain aggravating circumstances of the offences mentioned thereunder. The two latter Sections apply to the case of causing "grievous hurt" and the immediately preceding two Sections to the case of 'hurt'.
14. "Grievous hurt" has been defined in Section 320 IPC, which read as follows:
"320 Grievous Hurt - The following kinds of hurt only are designated as "grievous"-
First - Emasculation.
Secondly - Permanent privation of the sight of either eye. Thirdly - Permanent privation of the hearing of either ear. Fourthly - Privation of any member or joint.
Fifthly - Destruction or permanent impairing of the powers of any members or joint.
Sixthly - Permanent disfiguration of the head or face. Seventhly - Fracture or dislocation of a bone or tooth. Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
15. Some hurts which are not like those hurts which are mentioned in the first seven clauses, are obviously distinguished from a slight hurt, may nevertheless be more serious. Thus a wound may cause intense pain, prolonged disease or lasting injury to the victim, although it does not fall within any of the first seven clauses. Before a conviction for the sentence of grievous hurt can be passed, one of the injuries defined in Section 320 must be strictly proved, and the eighth clause is no exception to the general rule of law that a penal statute must be construed strictly.
16. The expression "any instrument which used as a weapon of SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 15 of 31 offence is likely to cause death" has to be gauged taking note of the heading of the Section. What would constitute a 'dangerous weapon' would depend upon the facts of each case and no generalization can be made.
17. The heading of the Section provides some insight into the factors to be considered. The essential ingredients to attract Section 326 are :
(1) voluntarily causing a hurt;
(2) hurt cadepending upon various factors like size, sharpness used must be a grievous hurt; and (3) the grievous hurt must have been caused by dangerous weapons or means.
As was noted by this Court in State of U.P. v. Indrajeet Alias Sukhatha MANU/SC/0529/2000 : 2000CriLJ4663 there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Whether a particular article can per se cause any serious wound or grievous hurt or injury has to be determined factually. As noted above the evidence of Doctor (PW 5) clearly shows that the hurt or the injury that was caused was covered under the expression 'grievous hurt' as defined under Section 320 IPC. The inevitable conclusion is that a grievous hurt was caused. It is not that in every case a stone would constitute a dangerous weapon. It would depend upon the facts of the case. At this juncture, it would be relevant to note that in some provisions e.g. Sections 324 and 326 expression "dangerous weapon" is used. In some other more serious offences the expression used is "deadly weapon" (e.g. Sections 397 and 398). The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case Section 325 or Section 326 would be applicable.
18. In the instant case considering the size of the stone which was used, as revealed by material on record, it cannot be said that a dangerous weapon was used. Therefore, the conviction is altered to Section 325 IPC. No hard and fast rule can be applied for assessing a proper sentence and a long passage of time cannot always be a determinative factor so far as sentence is concerned. It is not in dispute that a major portion of the sentence awarded has been suffered by the appellant. On the peculiar facts of the case we restrict it to the period already undergone.
20. Hence it is held that prosecution has failed to prove that nature of SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 16 of 31 injury on the PW-1/victim was grievous. Hence at the most nature of the injury on the victim was simple in nature. Now it has to been seen that whether this simple nature of injury can satisfy Section 308 IPC. It is proved on record that there was prior ill will between the parties due to altercation happened during last night and therefore the accused person had reason to hit the victim. The CCTV footage has proved that hurt was caused voluntarily without any provocation read with evidence of PW-1. Such hitting by brick was caused by the instrument of shooting, cutting or such instrument that is likely to cause death which is brick in the present case. Hence the prosecution has satisfied the case against the accused under Section 324 IPC as laid down in case titled Anuj Singh @ Ramanuj Singh @ Seth Vs. State of Bihar. The relevant para of the citation are reproduced hereasunder:
Anuj Singh@ Ramanuj Singh@ Seth vs The State of Bihar on 22 April, 2022 =(2022) 04 SC CK 0071 from Hon'ble Supreme Court of India in Criminal Appeal No.150/2020 has held as under:
16. A bare perusal of the deposition of the witnesses prove that the two appellants, Anuj Singh and Manoj Singh were present at the place of occurrence with a firearm and injury has been caused to the informant PW-6 due to the act of the Appellants. The defence of plea of alibi taken by appellant Manoj Singh that he was posted at Islampur Block does not inspire confidence as there is no attendance register maintained by the office and the prosecution witness has categorically stated that the Appellant, Manoj Singh was present at the place of occurrence.
17. It is not disputed that there are minor contradictions with respect to the time of the occurrence or injuries attributed on hand or foot but the constant narrative of the witnesses is that the appellants were present at the place of occurrence armed with guns and they caused the injury on informant PW-6. However, the testimony of a witness in a criminal trial cannot be discarded merely because of minor contradictions or omission as observed by this court in Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra (2000) 8 SCC 457. This Court while considering the issue of contradictions in the testimony, while appreciating the SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 17 of 31 evidence in a criminal trial, held that only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witnesses. Relevant portion of para 42 of the judgment reads as under:
"42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW 2.
Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness."
18. The evidentiary value of a medical witness is very crucial to corroborate the case of prosecution and it is not merely a check upon testimony of eyewitnesses, it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. It has been reiterated by this court that the medical evidence adduced by the prosecution has great corroborative value as it proves that the injuries could have been caused in the manner alleged. In the case at hand, PW-8, Dr. Himkar who examined the informant PW-6 has clearly stated that all the injuries attributed on the informant were caused by firearms and that tattooing may not appear over the wound (injured area) if a person fires from 6-7 ft.
19. A detailed examination of prosecution witnesses clearly establishes:
i. That there was altercation between Informant PW-8 and the two appellants Anuj Singh and Manoj Singh with respect to preventing the Informant Pw-8 from repairing his wall.
ii. All the witnesses unequivocally confirmed the presence of the two appellants at the place of occurrence on 10.10.1999. iii. All the eyewitness have confirmed that the two appellants Anuj Singh and Manoj Singh were armed with firearm.
iv. The medical evidence of PW-8, Dr. Himkar corroborates that injuries inflicted on the Informant PW-8 were firearm injuries. v. Injuries were inflicted on the non-vital part of the body of the Informant PW-8.SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 18 of 31
20. It is a well-known fact that the term "hurt" simply means performing an act which leads to physical pain, injury or any disease to a person. At times, hurt may be caused voluntarily or it can by caused by using dangerous weapons or mean. A person will be liable to have caused hurt voluntarily through dangerous weapons and means under Section 324 IPC which reads as under:-
"324. Voluntarily causing hurt by dangerous weapons or means.-- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
21. To establish an offence under Sec 324 IPC, the presence of following ingredients is a must which are as follows:-
1. Voluntary hurt caused to another person by the accused, and
2. Such hurt was caused:
a. By any instrument used for shooting, cutting or stabbing, or any other instrument likely to cause death, or b. By fire or other heated instruments, or c. By poison or other corrosive substance, or d. By any explosive substance, or e. By a substance that is dangerous for the human body to swallow, inhale, or receive through blood, or f. By an animal.
When a person commits an offence of voluntarily causing hurt by dangerous weapons and means under Section 324 of Indian Penal Code, then such person shall be punished with imprisonment for a period of three years, or with fine.
22. In the case at hand, it is evident from the evidence of prosecution witnesses that the two appellants have caused hurt on the body of the informant, PW-8 by using firearm on account of an altercation which took place between the appellants and the informant PW-8. It also stands corroborated from the evidence of the prosecution witness that there existed previous enmity between the parties due to a land dispute and the same can be perceived from their acts. Thus, the charge of Section 324 IPC stands SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 19 of 31 established against the two appellants. Once the charge against the appellants under Section 324 IPC of voluntarily causing injuries by firearm, which is a dangerous weapon stands established, they cannot escape the punishment for using arms prescribed by Section 27 of the Arms Act.
21. Though both the accused had hit with a brick. However only one injury was found on the head and two abrasions were found on the chest. It is settled law that merely because the injury was found on the head it cannot be said that such an injury was caused with a intention of culpable homicide. PW-1 had not disclosed that what was the nature of altercation during last night between him and the accused nor it is proved by the prosecution in evidence of PW-1 except that there was such quarrel. It was important to prove the above facts to ascertain if there could be nature of pre-meditation to cause such injury in the nature defined under Section 308 IPC. In absence of the same it cannot be said that the accused person had intended to cause such injury having intention or knowingly if death was caused by such an act. The relevant citation titled State Vs. Kamlesh Bahadur is reproduced hereasunder in this regard:
Crl. L.P. 515/2019 State vs. Kamlesh Bahadur (12.09.2023 - DELHC) : MANU/DE/6246/2023
13. In Ramesh V State MANU/DE/0139/2010 : 2010 (I) JCC 796, this Court altered the conviction from 308/34 to 323/34 by holding that assault was not premeditated and merely because an injury was found on the head, it cannot be said that such an injury was caused with the intention to commit culpable homicide. In Sunder V State MANU/DE/0331/2010 : 2010 (1) JCC 700, this Court altered the conviction of the appellant from Section 308 to 323 IPC by holding that in order to prove offence under Section 308 IPC, prosecution was required to prove that the injury was caused with such intention or knowledge and under such circumstances that if it had caused death, the act of appellant would have amounted to culpable homicide not amounting to murder. In Raju @ Rajpal and others V State of Delhi MANU/DE/2623/2014 : 2014 (3) JCC SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 20 of 31 1894, this Court altered the conviction from Section 308 to 323/34 by holding that the nature of injuries were simple and injuries were not caused with the avowed object or knowledge to cause death. In Ashok Kumar and another V State of Delhi Crl. Appeal No. 17/2011 decided on 20.02.2015, this Court altered the conviction of Section 308 IPC to Section 323/34 IPC and held that injuries were opined by the doctor as simple caused by a blunt object.
Nature of injuries is not such which will be sufficient to indicate that the appellants had any intention or knowledge that by this act they would have caused death of complainant. In Pawan Chaddha V State Criminal Appeal 640/2011 decided on 27.01.2016 by this Court, the appellant was convicted for offence under Section 308 and Section 323/34 IPC while the co-accused were held guilty and convicted under Section 323/34 IPC. As per the MLC following injuries were observed on person of the complainant:-
(i) CLW 8x2x.5 cms over central parieto occipital region.
(ii) Swelling and tenderness right forearm and wrist.
(iii) Abrasion 1x1 cm over right wrist.
One of issues which arises for consideration is whether the act of appellant in causing injuries on the person of the victim, attracts ingredients of offence under Section 308 IPC. It was observed as under:-
In order to constitute an offence under Section 308 IPC it is to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered. In this case, no previous enmity or dispute between the appellants and the complainant could be proved. There was no premeditation. The quarrel had taken place on a trivial issue. The nature of injuries suffered by the complainant was opined to be simple caused by blunt object. Apparently, the injuries were not caused with the avowed object or knowledge to cause his death.
It was further observed that the Trial Court has convicted the appellant under section 308 IPC on the ground that the appellant initially hit the complainant with a saria and again given a blow with a wooden leg of the cot on vital part of the body i.e. head. There was no premeditation. The entire incident took place on the spur of the moment. Injuries were opined to be simple. The SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 21 of 31 ingredients of section 308 IPC are not attracted and the case falls within the ambit and scope of section 323 IPC.
14. It is appearing from the medical evidence that the PW-2/Sushila Devi received simple injuries. The testimony of PW- 5 reflects that PW-2/Sushila Devi received a CLW over scalp 2x1cm and a CLW over left forearm 5x 7cm. PW-2/Sushila Devi at the time of admission, was found to be conscious and oriented with almost normal vitals and after giving the treatment and requisite medicines PW-2/Sushila Devi was discharged.
15. After considering all facts as mentioned hereinabove, the prosecution/petitioner/State is able to prove the case against the respondent for the offence punishable under section 323 IPC.
Accordingly, the respondent is convicted for the offences punishable under section 323 IPC.
22. No words were uttered by both the accused person during commission of such injury. One of the accused wearing shirt was seen hitting towards head and other accused was seen hitting towards leg. This shows that if there was common intention then it was not for committing culpable homicide not amounting to murder. Only one blow was rendered on the head. In these circumstances of the case it cannot be said that the accused person had intention or knowledge if death was caused by such an act and hence prosecution has failed to prove the second ingredient laid down under Section 308 IPC. However, it has satisfied the necessary ingredient laid down under Section 324 IPC.
23. The last ingredient which the prosecution has to prove that whether the act committed by the accused was under such circumstance if death was caused by such act then accused would be guilty of culpable homicide not amounting to murder. The circumstance of the act are to be seen. Out of many hit accused had attempted only one hit on the head which was also simple in nature. PW-2 is not eye witness to the case and when he reached SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 22 of 31 at the spot then PW-1 was unconscious. PW-2 had taken the victim to the hospital. In the MLC of PW-1 it records that he was brought by PW-2 the uncle of PW-1. Hence PW-2 had not seen the incident. PW-2 had also not disclosed who was the person informed him about injuries on PW-1 and that PW-1 was lying unconscious on his Thela. PW-2 is witness to the seizure of brick piece lying at the spot by the police in his presence which was seized vide memo Ex.PW2/F. The piece of brick is Ex.P1. In cross- examination it is deposed by PW-2 that PW-1 never informed him about the name of person who had inflicted injury upon him. However PW-2 has sufficiently proved that the PW-1 was injured on such date and time who was taken to the hospital by PW-2 on 27.09.2017 at about 6 AM. Hence immediately thereafter the incident sooner PW-1 was taken to hospital by PW-2 when the injuries were fresh and what had happened immediately thereafter the offence and circumstances at the spot are proved by PW-2. The bricks were used which shows that the accused person had picked the bricks nearby the spot and they had not pre-mediated and pre-planned the attack. Immediately thereafter they also ran away from the spot. However the victim was sleeping not knowing the intent of accused person and he was helpless to defend himself. The accused person had given a vent to their anger upon PW-1. In the above circumstances of the case it is held that the act was not committed by the accused person on PW-1 under such circumstance that if death was caused by the act the accused would be guilty of culpable homicide. Hence prosecution has failed prove Section 308 IPC against both the accused person. However the prosecution has successfully proved the necessary ingredients laid down under Section 324 IPC.
SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 23 of 3124. Both the accused person had came together and hit together the unaware victim when he was sleeping in the dark time in the morning. Accused person knew that at that time nobody was present near the victim. They came together and ran away together. Section 34 is applicable even if no injury was caused by the particular accused himself. For applying Section 34 it is not necessary to show some overact on the part of the accused. The facts and circumstances of the case are sufficient to show that there was common intention animating between both the accused leading to hit the victim by brick which had attracted the principle of joint liability against both the accused in view of citation titled Chaman and Ors. Vs. State of Uttaranchal. The necessary citation is reproduced hereasunder:
Chaman and Ors. vs. State of Uttaranchal (01.12.2008 - SC) :
MANU/SC/8334/2008 from Hon'ble Supreme Court of India in Criminal Appeal No. 409 of 2007
6. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. 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. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab MANU/SC/0089/1976 : 1977CriLJ164, the existence of a common intention amongst the participants in a crime is the essential SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 24 of 31 element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
7. As it originally stood, Section 34 was in the following terms:
When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.
8. In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor MANU/PR/0013/1945.
9. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh MANU/SC/0717/1993 : 1993CriLJ2246, Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.
10. The above position was highlighted recently in Anil Sharma and Ors. v. State of Jharkhand MANU/SC/0433/2004 :
2004CriLJ2527 ; in Harbans Kaur v. State of Haryana MANU/SC/0170/2005 : 2005CriLJ2199 and Amit Singh Bhikamsingh Thakur v. State of Maharashtra MANU/SC/7004/2007 : 2007CriLJ1168.
25. The accused no. 2 Sultan Yadav was further charged under Section 174A IPC who had failed to appear before ld. MM on 07.02.2018 and thereby proclamation was issued against him under Section 82(1) Cr. PC. It SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 25 of 31 was laid down by Hon'ble Supreme Court of India in case titled Daljit Singh Vs. State of Haryana & Ors. wherein it is laid down that Section 174A IPC is an independent and substantive offence that can continue even if proclamation under Section 82 Cr. PC is extinguished. The relevant para is reproduced hereasunder:
Daljit Singh vs. State of Haryana and Ors. (02.01.2025 - SC) :
MANU/SC/0013/2025=Neutral Citation: 2025 INSC 21 7.3 Now, what happens if the status Under Section 82 Code of Criminal Procedure is nullified i.e., the person subjected to such proclamation, by virtue of subsequent developments is no longer required to be presented before a Court of law. Then, can the prosecution still proceed against such a person for having not appeared before a Court during the time that the process was in effect. The answer is in the affirmative. We say so for the following reasons:
(i) The language of Section 174A, Indian Penal Code says "whoever fails to appear at the specified place and the specified time as required by proclamation...". This implies that the very instance at which a person is directed to appear, and he does not do so, this Section comes into play;
(ii) What further flows from the language employed is that the instance of non-appearance becomes an infraction of the Section, and therefore, prosecution therefor would be independent of Section 82, Code of Criminal Procedure being in effect;
(iii) So, while proceedings Under Section 174A Indian Penal Code cannot be initiated independent of Section 82, Code of Criminal Procedure, i.e., can only be started post the issuance of proclamation, they can continue if the said proclamation is no longer in effect.
(iv) We find that the Delhi High Court has taken this view, i.e., that Section 174A, Indian Penal Code is a stand-alone offence in Mukesh Bhatia v. State (NCT of Delhi) MANU/DE/1166/2022 :
2022:DHC:1301; Divya Verma v. State MANU/DE/2839/2023; Sameena and Anr. v. State GNCT of Delhi and Anr.8 For the reasons afore-stated, we agree with the findings made in these judgments/orders. At the same time, it stands clarified that we have not commented on the merits of the cases.
(v) Granted that the offence prescribed in Section 174A Indian Penal Code is indeed stand-alone, given that it arises out of an original offence in connection with which proceedings Under SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 26 of 31 Section 82 Code of Criminal Procedure is initiated and in the said offence the Accused stands, subsequently, acquitted, it would be permissible in law for the Court seized of the trial under such offence, to take note of such a development and treat the same as a ground to draw the proceedings to a close, should such a prayer be made and the circumstances of the case so warrant.
8. In conclusion, we hold that Section 174A Indian Penal Code is an independent, substantive offence, that can continue even if the proclamation Under Section 82, Code of Criminal Procedure is extinguished. It is a stand-alone offence. That being the position of law, let us now turn to the present facts. As we have already noted supra, the Appellant stands acquitted of the main offence.
26. It is a stand alone offence. However in the said case the said offence was quashed from Hon'ble Supreme Court of India considering that the main offence/subject matter of dispute stood decided between the parties. Hence the offence under Section 174A IPC can continue independent of the FIR. However Hon'ble Punjab and Haryana High Court in case titled Pardeep Kumar Vs. State of Punjab & Anr. has laid down that cognizance under Section 174A cannot be taken by any Court except complaint in writing of public servant/judge concerned or such public servant to whom he is administratively subordinate. The prescribed course is to file a complaint in writing in the competent jurisdictional Court. Hence from the above discussion it has come out that Section 174A IPC is an independent offence which can be tried independently and tried separately than filed in the chargesheet before the Court of competent jurisdiction. Hence the Court of competent jurisdiction is the concerned ld. jurisdictional Magistrate before whom the complaint has to be filed. Hence the prosecution has failed to show it has filed the necessary complaint in this regard in absence of which the basis of prosecution of accused under Section 174A IPC is absent and therefore the accused person cannot be convicted under Section 174A SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 27 of 31 IPC due to absence of proper jurisdictional complaint. The relevant citation in this regard is reproduced hereasunder:
The Hon'ble High Court of Punjab and Haryana at Chandigarh CRM-M-41656-2023 (O&M) Date of decision: 23.08.2023 in case titled Pardeep Kumar versus State of Punjab and another has laid down as under:
12.3. Clause(d) of Section 2 of the Code of Criminal Procedure defines "com-plaint" as any allegation made orally or in writing to a Magistrate, with a view to his tak-ing action under this Code,that some person, whether known or unknown, has committed an offence, but does not include a police report.
12.4.Pertinently, vide explanation provided below Clause (d) ibid a report by a police officer shall be deemed to be a complaint in a case, which discloses the commis-sion of a non-cognizable offence. But it must be preceded with an investigation. The po-lice officer by whom such report is made, shall be deemed to be the complainant. Ac-cording to the First Schedule of the Code, the offence under Section 174-A of IPC is cognizable. The aforesaid explanation is, thus,not applicable to the case in hand.
12.5. From the plain language of Section 195 of the Code of Criminal Procedure, it is obvious that offence under Section 174-A of IPC falls within its scope. Its cogni-zance cannot be taken by any Court except on the complaint in writing of the public ser-
vant/Judge concerned or of some other public servant/Judge to whom he is administra-tively subordinate. This being the position, after declaring the petitioner a proclaimed person, if at all the learned Magistrate had desired and decided to proceed against the pe-titioner for an offence under Section 174-A of IPC, the prescribed course for him was to institute a complaint in writing in the competent jurisdictional Court. Instead of that, the learned trial Court adopted a short but wrong cut and just sent a copy of his orders to the local police for initiation of proceedingsunder Section 174-A against the petitioner (ob-viously by registration of an FIR).
12.8 The reasoning given in Maneesh Goomer's case(supra)is that Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174-A IPC,as the Legislature was conscious of the fact that the offence (under Section 174-A IPC) is cog-nizable. It may be noted here that Section 188 of IPC is also in Chapter X of IPC and is a cognizable offence. And yet, it was and is still specifically covered by the provisions of Section 195 of the Code of Criminal Procedure. On the logic of Maneesh Goomer's case SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 28 of 31 (supra), in my opinion,Section 174-A IPC cannot be held excluded from the purview of Section 195 Cr.P.C. merely because it is cognizable.
12.9 Having given my thought further on the reasoning given in Maneesh-Goomer's case (supra), with utmost respect, I have a different take on the same. Notably, introduction of Section 174-A into the IPC was accompanied by a corresponding amendment in Schedule 1 of the Cr.P.C. This amendment classified the aforementioned offence as cognizable. However, Section 195 of the Cr.P.C. was consciously not amended correspondingly to exclude Section 174-A from its ambit, as is now being proposed through Section 215 of 'The Bhartiya Nagrik Suraksha Sanhita 2023 Bill'. Said Bill cur-rently under consideration of the legislature.The omission of Section 174-A from the scope of Section 195 of the Cr.P.C cannot, therefore, be alsocharacterized as a mere oversight, especially in light of the deliberate amendment in Schedule-1, while Section 195 ibid was conspicuously left untouched.
12.11 From comparison of the text as aforesaid, it is borne out that Section 174-A IPC and corresponding Section207of 'The Bhartiya Nagrik Suraksha Sanhita Bill 2023'are though verbatim, but it is now proposed to take Section 207 ibid out of the pur- view of Section 215 of 'The Bhartiya Nagrik Suraksha Bill, 2023' (corresponding to Sec-tion 195 of Cr.PC). Thus, in its current state, Section 195 of Cr.P.C., unequivocally en-compasses Section 174A of the Indian Penal Code (IPC) within its legal framework. The earlier absence of corresponding amendment did perhaps give rise to a measure of bewil-derment. However, the said conspicuous absence of a corresponding modification to Sec-tion 195 Cr.P.C. has now drawn the attention of the legislature in the form of the cur-rently contemplated Bill.
12.12. Be that as it may, it is unmistakably evident that the omission of Section 174-Afrom the purview of Section 195 of the Cr.P.C. cannot be treated as a mere in ad-vertent oversight. It gets more particularly obvious, when viewed through the lens of the deliberate simultaneous legislative action taken to amend Schedule-1. This deliberate choice to eschew any alteration in Section 195 Cr.P.C. while making concurrent changes elsewhere in the same Code suggests a level of intentionality that cannot be readily dis-counted.
12.13. Having opined as above, I may also hasten to add here that non-inclusion of Section 174-A of IPC into the ambit of Section 195 of Cr.P.C in its current form, does though create some SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 29 of 31 incongruity/legal inconsistency. To elucidate, let us consider an illus-trative scenario: Imagine an individual accused of an offense falling under Section 174-A of the IPC. Being an offense classified as cognizable, the police have the authority to ar-rest the accused without a warrant. However, Section 195 of the Cr.P.C. bars any Court from taking its cognizance except on the complaint in writing made by the Court/Public servant concerned. This creates an anomalous situation where an individual who is ac-cused under Section 174-A IPC could potentially be arrested without a warrant, yet the legal requirement for his prosecution for such an offense is by way of filing a complaint under Section 195 of the Cr.P.C.
12.15. Nevertheless, even if we were to entertain the notion that non-exclusion of-Section 174-A of IPC from the purview of Section 195 Cr.P.C. was by an inadvertent oversight/omission in the legislation, it is crucial to recognize that any benefit arising from such an inadvertence or oversight would accrue to the advantage of the accused, rather than the prosecution. In the realm of criminal jurisprudence, matters pertaining to personal liberty hold a paramount position. Such matters pertaining to personal liberty should never be predicated upon inferences drawn against the accused from presumed in-tentions and/or inadvertent omissions on the part of the legislature. The sanctity of per-sonal liberty demands nothing less than clear and categorical legislative provisions ensur-ing that justice is not compromised by inferences drawn against the accused from legisla-tive ambiguity or oversights.
12.16. In conclusion, it is held that Section 195 of the Code of Criminal Procedure (Cr.PC), in its present form, encompasses Section 174-A of the Indian Penal Code (IPC) within its purview.
27. Hence it is held that the charge against the accused no. 2 Sultan Yadav under Section 174A IPC cannot be sustained and prosecution has failed to substantiate the same and therefore accused no. 2 Sultan Yadav stands discharged under Section 174A IPC.
28. In view of above discussion, it is held that prosecution has successfully proved the necessary ingredients laid down under Section 324 IPC. Hence accused no. 1 Manish Yadav and accused no. 2 Sultan Yadav SC No. 253/2018 FIR No. 104/2017 State Vs. Manish Yadav & Anr. Page 30 of 31 are held guilty and convicted under Section 324/34 IPC and accused no. 2 Sultan Yadav stands acquitted for the offence under Section 174A IPC.
Put up for arguments on the point of sentence on 29.03.2025.
Announced in the open Court JOGINDER Digitally
JOGINDER
signed by
on 22.03.2025. PRAKASH PRAKASH NAHAR
Date: 2025.03.22
NAHAR 15:50:30 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 253/2018
FIR No. 104/2017
State Vs. Manish Yadav & Anr. Page 31 of 31