Delhi District Court
State vs Rajiv And Ors on 9 April, 2026
SC No. 64/17 State Vs. Rajiv etc
IN THE COURT OF MS. NISHA SAHAY SAXENA
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH WEST : ROHINI COURTS: DELHI
In the matter of:-
Sessions Case No. 64/2017
CNR No. DLNW01-000969-2017
FIR No. 46/2014
Police Station : Sultan Puri
Under Section : 308/323/34 IPC
State V/s 1. Rajiv
S/o Umed Singh
R/o P-1, Jhuggi No. 75
Sultan Puri, Delhi.
2. Smt. Sonu
W/o Rajiv
R/o P-1, Jhuggi No. 75
Sultan Puri, Delhi.
3. Ravi
S/o Rishal Singh
R/o P-1, Jhuggi No. 75
Sultan Puri, Delhi.
4. Anil @ Kalu
S/o Rishal Singh
R/o P-1, Jhuggi No. 75
Sultan Puri, Delhi.
(Accused Anil @ Kalu is PO)
.... Accused
Date of committal to 01.02.2017
this court
Date of final 06.04.2026
arguments
Date of Judgment 09.04.2026
Appearance : Sh. P.K. Samadhiya, Ld. Addl. PP for the State. Nisha Sahay
Saxena
Ms. Usha Rani, Ld. LAC for all accused.
Digitally signed by
Nisha Sahay Saxena
FIR No. 46/2014 PS Sultan Puri Page 1 / 27 Date: 2026.04.10
14:41:58 +0530
SC No. 64/17 State Vs. Rajiv etc
JUDGMENT
1. On 13.01.2015 at about 11.15 PM, a quarrel took place between two brothers Rohtash and Rajiv, their respective wives and other associates, qua which two separate FIRs i.e. present FIR bearing No. 46/2014 and cross FIR bearing No. 47/2014 were registered at PS Sultan Puri. Both the said cases have been tried by this court following the guidelines laid down by the Hon'ble Supreme Court in case Nathi Lal Vs. State of Uttar Pradesh (1990) Sup SCC 145, wherein it has been held as under :
"2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But Digitally signed by Nisha Nisha Sahay FIR No. 46/2014 PS Sultan Puri Page 2 / 27 Sahay Saxena Date:
Saxena 2026.04.10 14:42:05 +0530 SC No. 64/17 State Vs. Rajiv etc both the judgments must be pronounced by the same learned Judge one after the other."
2. The present FIR bearing No. 46/2014 has been registered on the complaint made by complainant Rohtash to the effect that on 13.01.2014 at about 11.15 PM, he along with his cousin Ashwani @ Sonu and wife of Ashwani @ Sonu namely Sudesh were present outside his jhuggi. In the meantime, Rajiv younger brother of Ashwani @ Sonu, both of whom were having grudge against each other, came there along with his wife Smt. Sonu, and started abusing them. When they were asked not to abuse, they both got angry and saying that they would teach them a lesson, caught hold of Sudesh and started beating her with fist and kick blows. Rohtash and Ashwani @ Sonu tried to rescue Sudesh, but Rajiv and his wife Smt. Sonu called Kalu @ Anil and Ravi (brothers in law of Rajiv). Ravi hit Rohtash on his forehead with a danda, while Anil @ Kalu took out a pistol from his pants and hoisted the same in air, saying that if anyone dared to quarrel with his sister, would face dire consequences, and fired twice in air. Thereafter, all four accused ran away towards drain. Ashwani @ Sonu called the police at 100 number, pursuant whereto PCR reached at the spot and took them to hospital and recorded the statement of complainant Rohtash.
3. IO collected the MLCs of injured persons, recorded the statements of other witnesses, prepared the site plan and arrested the accused persons except accused Anil @ Kalu. Despite best efforts accused Anil @ Kalu could not be arrested and accordingly, he was declared proclaimed offender by Ld. Digitally signed by Nisha Nisha Sahay FIR No. 46/2014 PS Sultan Puri Page 3 / 27 Sahay Saxena Saxena Date:
2026.04.10 14:42:10 +0530 SC No. 64/17 State Vs. Rajiv etc Magistrate vide order dated 10.03.2017.
4. After completion of investigation, the charge-sheet was filed against the accused persons in the court of Ld. Magistrate for offence punishable u/s 308/336//323/34 IPC and supplementary charge-sheet was filed against Anil @ Kalu u/s 308/336/323/174A/34 IPC. After compliance of provisions of Section 207 Cr.P.C., Ld. Magistrate committed the case to the court of Sessions u/s. 209 Cr.P.C. for trial. As prima facie case for the offence u/s 308/323/34 IPC was made out against the accused persons, charge was framed against accused Rajiv, Smt. Sonu and Ravi to which they pleaded not guilty and claimed trial.
Prosecution Evidence
5. During trial, prosecution examined fifteen witnesses in all. S.No Witness Description of testimony
1. PW 1 Rohtash Complainant / injured.
2. PW 2 Smt. Sudesh Injured.
3. PW 3 Ct. Sandeep. Member / Photographer Mobile Crime Team.
4. PW 4 ASI Ram In-charge, Crime Team.
Kumar
5. PW 5 Ashwani Injured.
Kumar
6. PW 6 Ct. Satish Joined investigation with IO.
7. PW 7 Dr. Brijesh Proved MLCs of injured Sudesh and Singh Rohtash
8. PW 8 HC Rajender Duty Officer.
9. PW 9 Ct. Rajinder Joined investigation with IO.
10. PW 10 Dr. M Das Proved MLC of injured Ashwani @ Sonu Nisha Sahay FIR No. 46/2014 PS Sultan Puri Page 4 / 27 Saxena Digitally signed by Nisha Sahay Saxena Date: 2026.04.10 14:42:16 +0530 SC No. 64/17 State Vs. Rajiv etc
11. PW 11 SI Ravi Second IO, who filed charge-sheet.
Kumar
12. PW 12 ASI Kanwar DD Writer Pal
13. PW 13 SI Rajender Got accused Anil @ Kalu declared Singh PO and filed supplementary charge-
sheet qua him.
14. Ms. Vandana Proved proceedings conducted for Sharma, Ahlmad declaring accused Anil @ Kalu an absconder.
15. PW 15 SI Vikas Investigating Officer.
Sahu.
Documents relied upon by the prosecution :
S.No. Nature of document Exhibit 1. Statement of complainant. Ex. PW1/A. 2. Site Plan. Ex. PW1/B. 3. Sketch of two empty cartridges. Ex. PW1/C.
4. Seizure Memo of two empty cartridges. Ex. PW1/D.
5. Arrest Memo of accused Rajiv and Ex. PW1/E & Ravi. PW 1/F.
6. Personal Search Memo of accused Ex. PW1/G & Rajiv and Ravi. PW 1/H.
7. Photographs clicked by Crime Team. Ex. PW 3/P1 to P9.
8. Inspection Report prepared by Crime Ex. PW 4/A. Team.
9. MLC of injured Sudesh. Ex. PW 7/A.
10. MLC of injured Rohtash. Ex. PW 7/B.
11. Endorsement on Rukka. Ex. PW 8/A.
12. FIR. Ex. PW 8/B.
13. Disclosure Statements of accused Ravi Ex. PW 9/A & and Rajiv. Ex. PW 9/B. Digitally signed by Nisha FIR No. 46/2014 PS Sultan Puri Page 5 / 27 Nisha Sahay Sahay Saxena Saxena Date:
2026.04.10 14:42:23 +0530 SC No. 64/17 State Vs. Rajiv etc
14. Pointing Out Memo. Ex. PW 9/C.
15. MLC of injured Ashwani @ Sonu. Ex.PW 10/A.
16. Attested copy of DD No. 54A. Ex. PW 12/A.
17. Photocopy of said entry. Ex. PW 12/B.
18. Attested copy of DD No. 55 A. Ex. PW 12/C.
19. Photocopy of said entry. Ex. PW 12/D.
20. Proceedings qua declaring accused Anil Ex. PW 14/A @ Kalu an absconder.
21. Tehrir. Ex. PW 15/A.
22. Arrest Memo of accused Smt. Sonu. Ex. PW 15/B.
22. Two empty cartridges. Ex. P1 (colly).
6. In their respective statements under Section 313 CrPC, the accused persons denied all the allegations and claimed their innocence and false implication by the police. They chose not to lead any defence evidence.
7. I have heard arguments advanced by Sh. P.K. Samadhiya, Ld. Addl. Public Prosecutor for the State, and Ms. Usha Rani, Ld. counsel for accused persons and also gone through the relevant case law and have scrutinized the evidence adduced by the prosecution.
ANALYSIS & REASONING
8. In the present case, accused Rajiv had married a widow i.e. accused Smt. Sonu, against the wishes of his family members. This act of accused Rajiv offended his brother Ashwani @ Sonu and other family members and they were having acrimony among themselves, which was the bone of contention Nisha Sahay FIR No. 46/2014 PS Sultan Puri Page 6 / 27 Saxena Digitally signed by Nisha Sahay Saxena Date: 2026.04.10 14:42:29 +0530 SC No. 64/17 State Vs. Rajiv etc of the incident in question. In the incident in question, both the brothers i.e. accused Rajiv and Ashwani @ Sonu, who were having sour relations, had a quarrel, which got violent and both the parties not just gave beatings to each other but also got lodged counter criminal cases against each other.
9. As regards the present case, the prosecution has primarily relied upon the testimony of injured persons. Injured Rohtash entered the witness box as PW 1 and deposed that on 13.01.2014 at about 11:15 pm, his cousin Ashwani @ Sonu and his wife Sudesh had come to his jhuggi and they were talking in front of his jhuggi in the street. Meanwhile, accused Rajiv along with his wife Sonu (correctly identified), came near them. Accused Rajiv caught hold of him, while his wife Sonu caught hold of Sudesh. In the mean time, accused Anil @ Kalu (since PO) and accused Ravi (correctly identified) came there holding dandas. Thereafter, all the accused persons started beating them. Accused Anil @ Kalu took out pistol from his pants and brandished the same in air and also fired in the air. Accused Anil @ Kalu told that if they quarrelled with his sister then they would face dire consequences. He further deposed that due to the beatings given by the accused persons, he sustained injuries on his forehead.
10. In his cross examination by Ld. defence counsel, PW1 Rohtash deposed that accused Rajiv was residing in separate jhuggi. He admitted it to be correct that he had good family relations with accused Rajiv in the year 2008 when he brought him to Delhi. He further admitted it to be correct that accused Nisha Sahay Saxena FIR No. 46/2014 PS Sultan Puri Page 7 / 27 Digitally signed by Nisha Sahay Saxena Date: 2026.04.10 14:42:35 +0530 SC No. 64/17 State Vs. Rajiv etc Rajiv married with a widow lady i.e. accused Sonu. He was not annoyed with the said marriage. He volunteered that his (Rajiv's) brother Ashwani was annoyed with the said marriage. He denied the suggestion that he was annoyed with the said marriage and for this reason he used to instigate the mother of accused Rajiv. He did not know if the parents of accused Rajiv had expelled him from their parental house. He denied the suggestion that they had beaten accused Rajiv and his wife as Ashwani @ Sonu was annoyed with the marriage of accused Rajiv with a widow lady i.e. accused Sonu or that Ashwani had told that he would get accused Rajiv married with a younger unmarried girl or that Ashwani told to accused Rajiv to leave his wife Sonu or that when Rajiv refused to do so, they gave them beatings.
11. PW 2 Smt. Sudesh deposed that since her brother-in- law (dever) / accused Rajeev (correctly identified) got married with one widow namely Smt. Sonu / accused (correctly identified), accused Rajiv and his wife accused Sonu were not cordial with other family members. She further deposed that on 13.01.2014 at about 11:15 pm, she along with her husband Sonu and her brother-in-law (jeth / tau ka ladka) Rohtash were standing outside the jhuggi of her brother-in-law and were conversing and in the meantime accused Rajiv and his wife Sonu came there and started abusing them. Her husband Sonu and brother-in-law objected to the same, pursuant whereto accused Rajiv and accused Sonu got angry and in the rage of anger caught hold of her and gave her beatings with slaps and punches badly. Accused persons were saying "aaj inko sabak sikhana hi padega". Her husband and her jeth intervened and tried to rescue her but both Nisha Sahay FIR No. 46/2014 PS Sultan Puri Page 8 / 27 Saxena Digitally signed by Nisha Sahay Saxena Date: 2026.04.10 14:42:41 +0530 SC No. 64/17 State Vs. Rajiv etc the said accused yelled and also called Kalu @ Anil and Ravi (both brothers of accused Sonu), pursuant whereto accused Ravi (correctly identified) came there, carrying danda in his hand, and hit the same on the head of her brother-in-law Rohtash. Accused Anil @ Kalu took out a pistol and brandished in the air, intimidating that if anyone quarrelled with his sister, he would be facing adverse consequences and accused Anil fired twice in the air. Thereafter, all of them ran away from there.
12. In her cross examination, PW 2 deposed that she brought accused Rajiv to Delhi and he was established here. She admitted it to be correct that accused Rajiv got married to one widow lady i.e. accused Sonu and brothers of Rajiv were annoyed with the said marriage. She did not know if the parents of accused Rajiv expelled him from his parental house. She denied the suggestion that they had beaten accused Rajiv and his wife, as Ashwani @ Sonu was annoyed with the marriage of accused Rajiv with a widow lady i.e. accused Sonu or that her husband had told that he would get accused Rajiv married with a younger unmarried girl or that her husband told the accused Rajiv to leave his wife Sonu or that when Rajiv refused to do so, they gave them beatings. She admitted it to be correct that a case was registered against them as well pertaining to the same incident.
13. PW5 Ashwani Kumar deposed that his younger brother namely Rajiv had entered into marriage with one widow namely Sonu @ Sonia and after the marriage, he was not having cordial relationship with their family. He further deposed that on 13.01.14 at about 11.15 p.m. he was standing with his wife Digitally signed by Nisha FIR No. 46/2014 PS Sultan Puri Page 9 / 27 Nisha Sahay Sahay Saxena Saxena Date:
2026.04.10 14:42:50 +0530 SC No. 64/17 State Vs. Rajiv etc Sudesh along with her uncle's son Rohtash in front of his jhuggi and in the meantime, his brother accused Rajiv and his wife Sonu came there and started abusing them. They asked them not to do so but on this they got angry and started beating his wife Sudesh. On this he and Rohtash intervened and thereafter they called accused Anil and Ravi. Accused Ravi was having danda in his hand, which he hit on the forehead of his cousin Rohtash. Accused Anil @ Kalu took out a pistol and fired two shots in the air.
14. In his cross examination by Ld. defence counsel, he admitted it to be correct that they were not having cordial relationship with Rajiv as he had got married to one widow. He further admitted it to be correct that he had named the accused persons in the present case as Rajiv had married with a widow of lower caste and that is why they have been falsely implicated in this case, and that the accused persons had not given beatings to Rohtash and his wife Sudesh. He further admitted it to be correct that he had given statement on the day of his examination, on the instructions of his elders in order to take revenge from accused persons. He further admitted it to be correct that accused persons had not fired at the spot.
15. On being re-examined by Ld. Prosecutor, PW 5 deposed that his version in his examination in chief is correct and that he has deposed falsely in his cross-examination as he has settled the matter with the accused persons and they just want to end the matter. He further deposed that the incident had taken place in the manner mentioned by him in his examination in chief Nisha Sahay FIR No. 46/2014 PS Sultan Puri Page 10 / 27 Saxena Digitally signed by Nisha Sahay Saxena Date: 2026.04.10 14:42:56 +0530 SC No. 64/17 State Vs. Rajiv etc and that at the instance of elder members of family, he has deposed falsely in his cross-examination in order to close the matter and his version in his examination in chief be taken as correct.
16. Police Officials (PW 3, 4, 6, 8, 9, 12 & 15) testified regarding various aspects of the investigation, including the registration of the FIR, evidence collection and witness statement recording.
17. Medical Professionals PW 7 Dr. Brijesh Singh and PW PW 10 Dr. M. Das provided crucial testimony regarding the nature and extent of injuries sustained by the victims.
18. The issue, as to the evidentiary value of injured witness was addressed by the Hon'ble Apex Court in judgment titled as Jarnail Singh Vs. State of Punjab (2009) 9 SCC 719, where in it was held that :
"Darshan Singh (PW-4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tube well.
In Shivalingappa Kallayanappa v. State of Karnataka 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case, it is proved that he suffered the injury during the said incident.
19. As regards the credibility and appreciation of evidence Nisha Sahay FIR No. 46/2014 PS Sultan Puri Page 11 / 27 Saxena Digitally signed by Nisha Sahay Saxena Date: 2026.04.10 14:43:02 +0530 SC No. 64/17 State Vs. Rajiv etc of an injured witness, it is settled that the injured is the most important witness in any particular case, and the fact that he sustained injuries, if any, is generally proof of the presence of the injured at the spot of occurrence. Minor contradictions in the testimony of the injured, are of no consequence, in as much as they do not erode the credibility of the witness. In routine, the testimony of the injured is disregarded only when the testimony of the injured suffers from glaring infirmities and material contradictions, which go to the root of the matter, to wipe out or put in doubt, the very genesis of the prosecution case.
20. In the present case, it is not in dispute that the injured persons and accused persons were present at the spot and that a quarrel took place between them. Though PW 5 in his cross examination by Ld. defence counsel deposed that he had named the accused persons as accused Rajiv had married a widow of lower caste and that accused persons had not given beatings to them. However, on being re-examined by Ld. Prosecutor, PW 5 re-affirmed that his version in examination in chief was correct and that he deposed falsely in his cross examination, as he has settled the matter with the accused person. He further re-affirmed that the incident had taken place in the manner as deposed by him in his examination in chief.
21. After going through the testimony of all the three injured person, I am of the opinion that they have corroborated each other on all material aspects and have stood firm despite grilling cross examination. As such the testimony of material witnesses remained uncontroverted and there is nothing on record Nisha Sahay FIR No. 46/2014 PS Sultan Puri Page 12 / 27 Saxena Digitally signed by Nisha Sahay Saxena Date: 2026.04.10 14:43:09 +0530 SC No. 64/17 State Vs. Rajiv etc to disbelieve the same.
22. Ld. Counsel has argued that the accused persons deserve to be given the benefit of doubt as there are some discrepancies in the prosecution case. However, minor discrepancies and inconsistencies in the testimony of prosecution witnesses do not make them discredit worthy.
23. Minor contradictions or discrepancies in witness statements are natural and do not automatically imply that the testimony is planted, rehearsed, or unreliable. Such small contradictions are often considered part of the human memory's fallibility and the trial process rather than deliberate falsehoods. Minor inconsistencies or small contradictions in witness testimony should not overshadow the truth of their statements. Memory lapses, stress, and time gaps between incident and trial are common reasons for such variations. Minor contradictions that do not strike at the core of the testimony or change the fundamental facts of the case do not discredit a witness.
24. Ld. Counsel for the accused has contended that the alleged weapon of offence i.e. danda was not recovered. However, it is settled position of law that recovery of the weapon of offense is not an essential condition for recording conviction if reliable eyewitness testimonies or strong forensic / circumstantial evidence exists. If witnesses give consistent, reliable testimony about the attack, the absence of the weapon does not negate the charge. In a recent case titled as 'State Vs. Laly @ Manikandan' Nisha Sahay FIR No. 46/2014 PS Sultan Puri Page 13 / 27 Saxena Digitally signed by Nisha Sahay Saxena Date: 2026.04.10 14:43:15 +0530 SC No. 64/17 State Vs. Rajiv etc dated 14.10.2022, Crl. Appeal Nos. 1750-1751 of 2022, the Hon'ble Supreme Court of India has reiterated that :
"7.... Similarly, assuming that the recovery of the weapon used is not established or proved also cannot be a ground to acquit the accused when there is a direct evidence of the eye witness. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye witness, even in the absence of recovery of weapon, the accused can be convicted".
25. The Hon'ble High Court of Delhi has also dealt with this proposition of law in Judgment titled as 'Mukesh Vs. State through Govt. of NCT of Delhi' dated 17.04.2015, CRL.A.189/2012 :
"The position of law in this regard is very clear. In Lakshmi vs. State of U.P. (2002) 7 SCC 198, it has been held that it is not an inflexible rule that the weapon of assault must be recovered. The Supreme Court did not accept as a general and broad proposition of law that in case of non recovery of the weapon of assault, the whole prosecution case gets torpedoed. In State of Rajasthan vs. Arjun Singh, (2011) 9 SCC 115, the Supreme Court has again held that "..... mere non- recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable." Nisha Sahay Saxena Digitally signed by FIR No. 46/2014 PS Sultan Puri Page 14 / 27 Nisha Sahay Saxena Date: 2026.04.10 14:43:22 +0530 SC No. 64/17 State Vs. Rajiv etc
26. Taking into consideration the testimony of all the witnesses, certain facts came to the fore, which have not been disputed i.e.
(a). Presence of accused and injured persons.
(b). A quarrel taking place between them.
(c). Lodging of cross FIRs against each other.
(d). Injured Rohtash, Ashwani @ Sonu and Smt. Sudesh sustaining simple injuries.
27. The defence put forth by the accused persons is to the effect that they have been falsely implicated by the police and have claimed innocence but they have chosen not to lead any defence evidence. Keeping in view the fact that admittedly a quarrel took place between the parties and that the injured have sustained injuries, the defence taken by the accused persons is found sham and baseless.
28. Ld. defence counsel has argued that PW 5 Ashwani @ Sonu has controverted his own version in his cross examination, admitting it to be correct that he has named the accused person in the present case as accused Rajiv had married with a widow of lower caste and that the accused persons had not given beatings to Rohtash and Smt. Sudesh. However, it to be noted that on being re-examined by Ld. Prosecutor, PW 5 reaffirmed that his version in his examination in chief was correct and that he has deposed falsely in his cross examination as he has settled the matter with the accused persons and wanted to end the matter. He further re-
Digitally signed by Nisha Nisha Sahay Sahay Saxena FIR No. 46/2014 PS Sultan Puri Page 15 / 27 Saxena Date:
2026.04.10 14:43:28 +0530 SC No. 64/17 State Vs. Rajiv etc affirmed that the incident had taken place in the manner mentioned by him in his examination in chief, and at the instance of elder members of his family, he deposed falsely in his cross examination, whereas the version put forth by him in his examination in chief be taken as correct. Opportunity was accorded to Ld. defence counsel to cross examination PW 5 after his re-examination, but except for putting a suggestion to the effect that he has deposed falsely in his re-examination, which was denied by him, no cross examination was conducted.
29. It is not in dispute that the accused persons and injured persons are relatives and they were in the process of compromising the matter and several adjournments have been taken by the injured persons as well as accused persons on the ground that quashing petition was being filed but despite specific directions and numerous opportunities, failed to place on record any order passed by the Hon'ble High Court in the quashing proceedings, if any.
30. As such, it can easily be presumed that whatever has been deposed by PW 5 Ashwani @ Sonu in his chief is his correct version. Since the matter was likely to be settled between the parties, in order to put an end to the litigation, he deposed falsely in his cross examination. Thereafter, in his re-examination, he reaffirmed that his version as recorded in examination in chief be taken as correct, and on this aspect he has not been cross examined, despite opportunity.
Nisha
Sahay
Saxena
FIR No. 46/2014 PS Sultan Puri Page 16 / 27
Digitally signed by
Nisha Sahay Saxena
Date: 2026.04.10
14:43:34 +0530
SC No. 64/17 State Vs. Rajiv etc
31. On careful and thorough scrutiny of the testimony of PW 1, PW 2 and PW 5, it comes to the fore that initially a verbal altercation took place between accused Rajiv and his wife Sonu on one hand and injured Rohtash, Ashwani @ Sonu and Smt. Sudesh on the other hand, which got violent and the accused persons started beating them with fists and punches and thereafter they called accused Ravi and accused Anil @ Kalu (since declared PO), who were carrying dandas in their hands and all the accused persons gave beatings to them.
32. As per the MLCs of injured Smt. Sudesh and Rohtash Ex. PW 7/A and Ex. PW 7/B respectively, duly proved on record by PW 7 Dr. Brijesh Singh, both the injured persons have sustained injuries. Injured Sudesh was having bruises over back and left hand, whereas the injured Rohtash was having CLW 0.5 x 0.5 cm on his forehead. As per the MLC of injured Ashwani @ Sonu proved on record as Ex. PW 10/A by PW 10 Dr. M. Das, on local examination of the patient, he was having Bruise on left elbow, left loin, right forearm and Abrasion in the right hand forearm and left side back. The nature of injuries sustained by all the three injured persons has been opined to be simple by the doctors concerned.
33. Though PW 7 Dr. Brijesh Singh in his cross examination admitted it to be correct that the injuries mentioned in the MLCs of injured Sudesh and Rohtash are possible due to fall besides physical assault. However, during the entire trial, it was not the defence of the accused persons that the injured Digitally signed by FIR No. 46/2014 PS Sultan Puri Page 17 / 27 Nisha Nisha Sahay Sahay Saxena Saxena Date:
2026.04.10 14:43:41 +0530 SC No. 64/17 State Vs. Rajiv etc persons have sustained injuries due to fall or that no quarrel has taken place between the accused persons and the injured. Even during cross examination of PW 10 Dr. M. Das, no suggestion was put to him to the effect that the injuries sustained by third injured Ashwani @ Sonu were possible due to fall besides physical assault. Accordingly, it stands proved that the injuries, simple in nature, were so sustained by them, during the quarrel which took place between the accused persons and the injured persons.
34. It is the case of the prosecution that it was the accused Anil @ Kalu (since PO), who was carrying a pistol and fired twice in air. Further, all the three injured have deposed that accused Anil @ Kalu (since PO) took out a pistol from his pants, brandished the same in the air and fired twice. It is also not in dispute that no injury was caused to any of the injured by such firing by accused Anil @ Kalu (since PO).
35. Therefore, I find that the prosecution, with the help of the material witnesses and the corroboratory evidence of the police officials and the doctor concerned, is able to prove its case against the accused Rajiv, Smt. Sonu and Ravi, that they gave beatings by fists, slaps, punches on the persons of the injured Rohtash, Sudesh and Ashwani and with a danda on the forehead of injured Rohtash, beyond reasonable doubt.
Section 34 IPC
36. In the present case, all the accused persons have been Nisha Sahay Saxena FIR No. 46/2014 PS Sultan Puri Page 18 / 27 Digitally signed by Nisha Sahay Saxena Date: 2026.04.10 14:43:47 +0530 SC No. 64/17 State Vs. Rajiv etc charged for the offences u/s 308/323/34 IPC on the allegations that they all in furtherance of their common intention caused injuries to the injured persons. At this juncture, it would be worthwhile to reproduce Section 34 IPC and the legal position on the same.
"Section 34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
37. It is clear that Section 34 IPC is not a penal section in itself. It defines the common intention, when more than one person commits a crime, who share the intention qua the offence committed. In such cases this section is applied along with the substantive offence. The offence, in the present case, was committed with common intention as per the allegations, which manifest in the acts attributed to the accused persons, therefore, Section 34 IPC was applied accordingly.
38. The The Supreme Court has recognized that common intention can develop rapidly "at the spur of the moment," and if all act together, joint liability arises. However, clear evidence must show that each accused actively participated, even minimally, in furtherance of the shared purpose.
39. In Jasdeep Singh @ Jassu vs State of Punjab (Supreme Court, 2022), the Hon'ble Supreme Court has observed as under :
"21. Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an Digitally signed by FIR No. 46/2014 PS Sultan Puri Page 19 / 27 Nisha Nisha Sahay Sahay Saxena Saxena Date:
2026.04.10 14:43:54 +0530 SC No. 64/17 State Vs. Rajiv etc offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence.
22. What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34 IPC does not get attracted.
23. It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack.
The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.
24. The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act "in furtherance of the said intention". One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of Digitally signed by Nisha FIR No. 46/2014 PS Sultan Puri Page 20 / 27 Nisha Sahay Sahay Saxena Date:
Saxena 2026.04.10 14:44:00 +0530 SC No. 64/17 State Vs. Rajiv etc evidence and thus does not create any substantive offense.
....
....
28. The existence of common intention is obviously the duty of the prosecution to prove.
However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court.
40. The aforesaid principle has also been dealt with by the Hon'ble Apex Court in case Virendra Singh V. State of Madhya Pradesh ((2010) 8 SCC 407) through the following paragraphs:
"15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" implies a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring Nisha Sahay FIR No. 46/2014 PS Sultan Puri Page 21 / 27 Saxena Digitally signed by Nisha Sahay Saxena Date: 2026.04.10 14:44:17 +0530 SC No. 64/17 State Vs. Rajiv etc about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in the case of Amrik Singh & Ors. v. State of Punjab, 1972 (4) SCC (N) 42:1972 CriLJ 465.
16. 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. Undoubtedly, it is difficult to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. Therefore, in order to find whether a person is guilty of common intention, it is absolutely necessary to carefully and critically examine the entire evidence on record. The common intention can be spelt out only from the evidence on record.
17. Section 34 is not a substantive offence. It is imperative that before a man can be held liable for acts done by another under the provisions of this section, it must be established that there was common intention in the sense of a prearranged plan between the two and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply.
41. In their emphatic testimony all the star witnesses have specifically named accused Rajiv, Smt. Sonu, Ravi and accused Anil @ Kalu (since PO) that they, in furtherance of their common intention, have caused injuries to them with fists, slaps, punches and with a danda on the forehead of Rohtash. It is also established that prior plan is not necessary to be proved. Common intention Nisha Sahay FIR No. 46/2014 PS Sultan Puri Page 22 / 27 Saxena Digitally signed by Nisha Sahay Saxena Date: 2026.04.10 14:44:22 +0530 SC No. 64/17 State Vs. Rajiv etc can develop rapidly 'at the spur of the moment'. Their active participation in furtherance of shared purpose is also established. The common intention in the instant case developed on the spot in the course of the fight in which accused persons actively participated.
Determination of Criminal Liability u/s 308 IPC
42. The accused has been charged for the offence punishable u/s 308 IPC. For ready reference, Section 308 IPC is being reproduced herein below :
308. Attempt to commit culpable homicide.--Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
43. The facts of the present case are required to be tested in order to ascertain the culpability of accused persons for the offence u/s 308 IPC read with section 34 IPC, with which they are charged.
44. Ld. Prosecutor for the State submitted that after an altercation took place between the parties, the injured persons were given beatings by the accused persons and the accused Ravi gave a danda blow on the forehead of injured Rohtash. Ld. PP for Nisha FIR No. 46/2014 PS Sultan Puri Page 23 / 27 Sahay Saxena Digitally signed by Nisha Sahay Saxena Date: 2026.04.10 14:44:28 +0530 SC No. 64/17 State Vs. Rajiv etc the State further submitted that even if it is taken as simple injury, nature of injury alone is not material and what is material is the intention and knowledge, which is to be inferred from the locus of injury In the present case, accused Ravi hit danda on the forehead of the complainant Rohtash, which is a vital part.
45. 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 his that that act had caused death, he would be guilty of culpable homicide not amounting to murder.
46. In Ramesh V State 2010 (I) JCC 796, Hon'ble High Court altered conviction from 308/34 IPC to 323/34 IPC holding that assault was not premeditated and merely because an injury was found on the eye, it cannot be said that such an injury was caused with the intention to commit culpable homicide.
47. In a case reported as Raju @ Rajpal and others V State of Delhi 2014 (3) JCC 1894, High Court altered the conviction from Section 308 IPC to 323/34 IPC 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 too, Hon'ble High 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 Nisha Sahay FIR No. 46/2014 PS Sultan Puri Page 24 / 27 Saxena Digitally signed by Nisha Sahay Saxena Date: 2026.04.10 14:44:34 +0530 SC No. 64/17 State Vs. Rajiv etc they would have caused death of complainant.
48. Issue which arises for consideration is whether the act of accused Ravi in causing injuries on the person of the Rohtash, attracts ingredients of offence under Section 308 IPC. 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.
49. As far as the 'knowledge' is concerned, the court finds that initially the accused Ravi was not involved in the quarrel and he participated therein only on being called by accused Rajiv and Smt. Sonu, and the act of accused Ravi hitting a danda on the forehead of the victim Rohtash was an outcome of heated emotions, when he was called for help by his sister and jija, rather than any intention or knowledge that his act might cause death of victim. The 'intention' to kill the victim was definitely missing in the instant case. In the case in hand, the accused Ravi had given only a single blow of danda on the forehead of the victim Rohtash and the nature of injuries sustained by Rohtash in the result of such danda blow, was opined to be simple. Digitally signed by Nisha Nisha Sahay FIR No. 46/2014 PS Sultan Puri Page 25 / 27 Sahay Saxena Saxena Date:
2026.04.10 14:44:40 +0530 SC No. 64/17 State Vs. Rajiv etc
50. Section 308 IPC envisages that whoever does any act with such intention or knowledge, and under such circumstances that, if they by that act had caused the death of victim, he would be guilty of culpable homicide not amounting to murder. In this case, neither such intention nor knowledge can be gathered from the nature of injuries sustained by the victim and also the circumstances in which such injuries had been caused. In this case, a quarrel took place between the accused persons and the injured persons all of a sudden wherein the accused persons in the heat of passion gave beatings to the victims. There was no premeditation. Nature of injuries sustained by injured are not such which will be sufficient to indicate that accused persons had any intention or knowledge that by their act they would have caused the death of Rohtash. It is trite law that intention and knowledge has to be gathered from the circumstances in which injuries are caused and also from the nature of injuries sustained by the victim. Accordingly, I am of the view that ingredients of Section 308 IPC are not attracted in this case and the case fall within the ambit and scope of Section 321 IPC which envisages that whoever voluntarily with intention causes hurt to any person or with the knowledge that he is likely thereby to cause hurt to any person, is said to "voluntarily to cause hurt". Section 323 IPC provides punishment for voluntarily causing hurt. Section 323 provides imprisonment for a term which may extend to one year, or with fine which may extend to Rs.1000/-, or with both.
51. Hence, this court is of the opinion that in the present case, offence u/s 308 IPC read with section 34 IPC is not proved. Digitally signed by Nisha Nisha Sahay FIR No. 46/2014 PS Sultan Puri Page 26 / 27 Sahay Saxena Date:
Saxena 2026.04.10 14:44:46 +0530 SC No. 64/17 State Vs. Rajiv etc However, it stands proved on record that the accused persons have caused simple injuries to the victims Rohtash, Ashwani @ Sonu and Sudesh, and therefore, the prosecution has been able to bring home the guilt of the accused for the offence punishable u/s 323 IPC.
52. Accordingly, all three accused Rajiv, Smt. Sonu and Ravi are hereby convicted for the offence punishable u/s 323 IPC read with section 34 IPC. While the accused Anil @ Kalu, who is a proclaimed offender shall face trial as and when he is apprehended. Digitally signed Nisha by Nisha Sahay Saxena Sahay Date:
Announced in the open Court 2026.04.10 Saxena 14:44:52 +0530 today i.e. 09th April, 2026 (Nisha Sahay Saxena) Principal District & Sessions Judge (NW) Rohini Courts, Delhi (k) FIR No. 46/2014 PS Sultan Puri Page 27 / 27