Delhi District Court
State vs Irfan @ Gandhi @ Dada on 29 November, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
FIR No.: 217/2017
PS.: Daya Ganj
u/S.: 304/323/34 IPC
State Vs. Irfan @ Gandhi @ Dada & Anr.
(a) SC Case No. 02/2018
(b) CNR No. DLCT01-000022-2018
(c) Date of commission ofOn 04.09.2017 at around 11:45
offence p.m. at Delhi Gate.
(d) Name of theMohd. Kashif, S/o. Mr. Mohd.
complainant Khursheed, R/o. H. No. 346, III
Floor, Katra Buddhan Rai, Delhi
Gate, Darya Ganj, Delhi.
(e) Name of the accused i) Irfan @ Gandhi @ Dada, S/o.
person(s), parentage Mr. Abdul Wahid, R/o. H. No.
and residence 542, Chatta Lal Myan, Darya
Ganj, Delhi; and
ii) Faiz @ Monu, S/o. Mr. Mohd.
Irshad, R/o. H. No. 546, Chatta
Lal Miyan, Delite Cinema,
Darya Ganj, Delhi.
(f) Plea of the accused Not guilty
persons
(g) Final Order Both the accused persons are
acquitted of the charges levelled
against them.
(h) Date of institution of 02.01.2018
case
(i) Date when judgment 30.10.2025
was reserved
(j) Date when judgment 29.11.2025
was pronounced
JUDGMENT
INTRODUCTION:
1. Laconically, the case of the prosecution is that on 07.09.2017 DD No. 4A was marked to the concerned police Digitally signed by SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 1 of 51 ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.11.29 16:49:15 +0530 official, i.e., SI Dinesh, whereupon he met with ASI Bajrang, who handed over a statement, DD No. 34A along with the complainant, namely, Kashif (hereinafter referred to as the 'complainant') to SI Dinesh. Markedly, under the said statement/complaint, the complainant inter alia proclaimed that he was resident of H. No. 346, III Floor, Katra Buddhan Rai, Delhi Gate, Darya Ganj, Delhi (at relevant point in time) and engaged in the business of artificial jewellery. As per the complainant, he along with his friend, namely, Faisal, R/o. Matiya Mahal, Delhi, used to routinely visit for a stroll and smoke, in front of Jai Prakash Narayan Hospital/JPN Hospital, post consumption of dinner (मैं रोजाना आपने एक साथी फै सल R/० मटीया महल दिल्ली के साथ रात को खाना खाने के बाद टहलने और सिगरे ट आदी पीने के लीए JPN Hospital के सामने जाता हूँ।). The complainant further avowed that like always, even on 04.09.2017, he had left his house for a stroll and cigarette smoke on his scooter bearing registration no. DL-8SAE-5811 (रोजाना की भाती दिनांक 4/9/2017 को रात में खाना खाकर आपने स्कु टर No DL8SAE5811 से टहलने व सिगरे ट पीने के लिये आपने घर से निकला।). At around 11:45 p.m., when the complainant is asserted to have reached near a park, in the vicinity of telephone exchange building, he/the complainant saw that his/complainant's acquaintance, namely, Abdul Majid, S/o. Mohd. Salim, R/o. 1869, Gali Patte wali, Suiwalan, Chandani Mahal, Delhi (hereinafter referred to as the 'deceased') was standing along with, Irfan @ Gandhi and Faiz Mohd. @ Monu ( समय करीब 11.45 PM पर जब मै स्कू टर से टे लिफोन एक्सचें ज बिल्डिंग के पास वाले पार्क के पास पहुँचा तो मैं ने देखा कि पार्क में मेरा एक जानकार अब्दूल माजिद S/० मौ. सलीम R/o 1869 गली पत्ते वाली सुईवालान चान्दनी महल दिल्ली दो आदमियो इरफान @ गांधी तथा फै ज मौहम्मद @ मोनु R/o छत्ता लाल मियाँ चादनी महल दिल्ली के साथ खड़ा था।). It was further avowed by the complainant under his complaint that he halted his scooter at the said spot and saw that a Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 2 of 51 2025.11.29 16:49:22 +0530 commotion/verbal scuffle, suddenly, ensued. Thereafter, as per the complainant, Irfan @ Gandhi and Faiz Mohd. @ Monu started beating Abdul Majid, mercilessly with kicks and punches ( मैने अपना स्कु टर वहाँ रोका और देखा अचानक किसी बात पर उनमे कहासुनी होने लगी। इसके बाद इरफान @ गाधी तथा फै ज मौहम्मद @ मोनू लात घुसो से बुरी तरह अब्दुल माजिद को मारने लगे।).
2. Correspondingly, it was avowed by the complainant that he immediately, telephonically informed Faisal of the said scuffle, whereupon Faisal reached at the spot and tried to intervene (मेने तुरन्त फै सल को फोन किया और बताया की झगडा हो रहा है इतने में फै सल भी वही आ गया हमने बीच बचाव की कोशिश की). Upon this, Irfan @ Gandhi and Faiz Mohd. @ Monu are proclaimed to have threatened even the complainant as well as Faisal, whilst, Irfan is asserted to have punched the complainant as well (तो इन दोनो ने हमे धमकाया और इरफान ने मुझे घुसा भी मारा।). Correspondingly, it was asserted by the complainant under his complaint that Irfan @ Gandhi and Faiz Mohd. @ Monu were, both, ruthlessly, beating Abdul Majid and repeatedly shoving him on ground, leading to Abdul Majid sustaining injury on his head and eventually losing consciousness (यह दोनो अब्दुल माजिद को बुरी तरह पीटते रहे और उसको उठाकर जमीन पर पटक दिया जिससे उसके सिर में चोट लगी और वह बेहोश हो गया।). Thereafter, Irfan @ Gandhi and Faiz Mohd. @ Monu are stated to have fled from the said spot (इसके बाद इरफान व फै ज मौहम्मद वहाँ से भाग गये।). Further, as per the complainant, Faisal and he sprayed water on Abdul Majid's face and took him to his home on their scooter, informing Abdul Majid's family members of the incident ( मैने और फै सल ने अब्दुल मुँह पर पानी के छीटे मारे तथा उसको स्कु टर के बीच में बैठाकर उसके घर पर अब्दुल माजिद बबलु के हवाले किया और बताया कि इसको दो लड़को ने मारा है।). Subsequently, as per the complainant, Abdul Majid's family Digitally members got him admitted in a Hospital. ABHISHEK signed by ABHISHEK GOYAL GOYAL Date:
2025.11.29 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 3 of 51 16:49:27 +0530 REGISTRATION OF FIR AND INVESTIGATION:
3. Notably, the endorsed complaint of the complainant was handed over to the concerned Duty Officer, PS Darya Ganj for the registration of the FIR/case, while the concerned police official/IO and the complainant proceeded for the Hospital for further investigation. Markedly, the Hospital, the Abdul Majid was found admitted since 05.09.2017, however, unfit for statement as well as in a critical condition at the relevant point in time. The concerned police official(s) also determined at that point in time that the MLC of Abdul Majid was not prepared at that point in time as the 'brought/by' had informed that he/Abdul Majid had sustained injuries in a fall from the stairs. In the meanwhile, the instant FIR No. 217/2017 under Sections 308/323/34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') was registered and when the concerned police official/IO along with the complainant reached at the incident spot, Ct. Sunil reached there from the police station along with the original tehrir and a copy of FIR. Markedly, during the ensuing investigation, site plan of the spot, i.e., behind Delhi Gate Metro Station Gate No. 3, Daryaganj, Delhi-110002, next to a statue (hereinafter referred to as the 'spot') was prepared at the instant of the complainant. However, it was asserted by the concerned police official(s)/IO that no other eyewitness of the incident was found present at the said spot, nor any CCTV camera found installed there. However, in the meanwhile, Abdul Majid was determined to have left for heavenly abode, in the meanwhile, his MLC bearing EE1004482 was prepared.
4. Correspondingly, during the course of investigation that followed, statements of various witnesses were recorded by Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.11.29 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 4 of 51 16:49:31 +0530 the concerned IO, besides accused persons, namely, Irfan @ Gandhi @ Dada, R/o. H. No. 542, Chatta Lal Miyan, Daryaganj, Delhi-110006; and Faiz @ Monu, R/o. H. No. 546, Chatta Lal Miyan, Daryaganj (hereinafter collectively referred to as the 'accused persons') were arrested at the instance of the complainant/eyewitness, namely, Mohd Kasif. Simultaneously, post-mortem examination of the deceased was got conducted and his body handed over to his relatives. Further, subsequent opinion on the treatment papers as well as post mortem report of the deceased was obtained and the statements of relatives of the deceased were got recorded by the concerned police official(s)/IO.
FILING OF CHARGESHEET AND COMMITTAL PROCEEDINGS: 5. Markedly, upon conclusion of aforenoted
investigation in the instant case, chargesheet was filed by the concerned IO before Ld. Metropolitan Magistrate/Ld. MM, Central, Tis Hazari Courts under Sections 304/323/34 IPC. Correspondingly, cognizance of offence(s), as specified under the chargesheet, was taken by Ld. MM, Central, Tis Hazari Courts on 05.12.2017 as well as the copy(ies) of chargesheet was(ere) supplied to the accused persons, against acknowledgement in terms of the provisions under Section 207 Cr.P.C. Subsequently, vide order dated 19.12.2017, Ld. MM, Central, Tis Hazari Court, passed an order of committal of the present case before the Ld. Predecessor Judge, routed via Ld. District & Sessions Judge, Tis Hazari Courts.
CHARGE FRAMING:
6. Subsequently, on receipt of clarification from the concerned Doctor at Lok Nayak Hospital regarding the delay in Digitally signed by ABHISHEK GOYAL ABHISHEK SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 5 of 51 GOYAL Date:
2025.11.29 16:49:36 +0530 preparation of MLC of the deceased, pursuant to the endeavour of the Ld. Predecessor Judge, and upon arguments on charge, having been addressed by/on behalf of the accused persons and State, Ld. Predecessor Judge vide order dated 16.01.2018, directed framing of charges under Sections 304 IPC against the accused persons. Notably, the relevant extract(s) of the said order of charge dated 16.01.2018, is reproduced as under;
"...Arguments are heard. Record is perused. Ld. Counsel for accused, in all fairness, concedes that the case if fit for framing of charge. The version of the prosecution is that on 04.09.2017 at about 11:45 p.m. at Delhi Gate, accused persons namely Irfan @Gandhi @ Dada and Faiz @ Monu in furtherance of their common intention gave beatings to one Abdul Majid by fist and leg blows and forcefully caused him to fall on the road and this resulted in the death of Abdul Majid on 15.09.2017 and thus they both committed the offence of culpable homicide not amounting to murder.
The accusation is supported by the version of Mohd. Kasif and also medical documents.
It is well settled that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of the ingredients constituting the alleged offence. The court is not supposed to meticulously examine and assess in detail the material placed on record by the prosecution to assess whether there is sufficient ground for conviction of the accused. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame charge. Reference is made to the judgments of Hon'ble Supreme Court titled as Superintendent and Remembrance of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja AIR 1980 SC 52, State of Delhi Vs. Gyan Devi AIR 2001 SC 40, State of Bihar Vs. Ramesh Singh AIR 1977 SC 2018 and Soma Chakravarty Vs. State AIR 2007 SC 2149. The material on record discloses that a prima facie case for the offence under Section 304 of IPC is made Digitally out against accused persons namely Irfan @ Gandhi signed by ABHISHEK @ Dada and Faiz @ Monu. ABHISHEK GOYAL GOYAL Date:
2025.11.29 Charge is framed against accused persons namely 16:49:40 +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 6 of 51 Irfan @Gandhi @ Dada and Faiz @ Monu. Charge is read over and explained to accused persons. Accused persons plead not guilty and claim trial. The case is fixed for PE on..."
(Emphasis supplied)
7. Further, it is apposite to reproduce the charges, framed against the accused on 16.01.2018, by the Ld. Predecessor Judge, pursuant to the aforesaid order, as under;
"...I, ***, do hereby charge you Irfan @ Gandhi @ Dada S/o Sh. Abdul Wahid and Faiz @ Monu S/o Mohd. Irshad as under:
That on 04.09.2017 at about 11:45 p.m. at Delhi Gate, you both in furtherance of your common intention gave beatings to one Abdul Majid by fist and leg blows and forcefully caused him to fall on the road which resulted in the death of Abdul Majid on 15.09.2017 and thus both of you committed an offence of culpable homicide not amounting to murder punishable under Section 304 of IPC.
And, I hereby direct that both of you be tried by this Court for the aforesaid offence..."
(Emphasis supplied) PROSECUTION EVIDENCE:
8. Notably, during the course of proceedings, prosecution examined 12 (twelve) witnesses/prosecution witnesses, who deposed in their respective testimonies, regarding the following;
8.1. PW-1/Sh. Kasif, eyewitness/complainant, who inter alia deposed regarding the incident.
8.2. PW-2/Dr. A. Arthy, Senior Resident, Maulana Azad Medical College, Delhi, who conducted the post-mortem examination of the deceased and deposed regarding the same. 8.3. PW-3/Mr. Faisal, who deposed regarding being informed by Kasif of quarrel and subsequently, finding the deceased as well as Kasif, whereupon the deceased was shifted to Digitally signed by Hospital. ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.11.29 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 7 of 51 16:49:47 +0530 8.4. PW-4/Abdul Fahim, who inter alia testified regarding the deceased being brought to home by Kasif and subsequently, taking the deceased to Hospital.
8.5. PW-5/Ms. Sakina, who inter alia deposed regarding shifting the deceased to Hospital with her family members. 8.6. PW-6/Ms. Farhana, who inter alia testified regarding the deceased being brought to home by Kasif and subsequently, taking the deceased to Hospital.
8.7. PW-7/ASI Devender Singh, who deposed regarding the registration of instant FIR, on receipt of rukka from SI Dinesh Joshi.
8.8. PW-8/Ct. Sunil Kumar, who deposed regarding taking of original rukka and copy of FIR from Duty Officer to th concerned IO.
8.9. PW-9/ASI Bajrang, who deposed regarding recording of the statement of the complainant on 07.09.2017. 8.10. PW-10/HC Dharmender, who deposed regarding conveyance of the case property in malkhana and handing over to FSL Report to concerned IO.
8.11. PW-11/SI Dinesh, the investigating officer in the instant case, who conducted the investigation and deposed regarding the same.
8.12. PW-12/Dr. Sejal Sudhakar Bhangle, Senior Resident, Rajeev Gandhi Super Speciality Hospital, who deposed regarding the examination and preparation of MLC of the deceased. 8.13. Notably, all the aforenoted prosecution witnesses were thoroughly examined by/on behalf of the accused persons by their Ld. Counsel. Digitally signed by ABHISHEK ABHISHEK GOYAL EXAMINATION OF ACCUSED: GOYAL Date:
2025.11.29 16:49:51 +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 8 of 51
9. Apposite to note here that upon conclusion of prosecution evidence, statements of accused persons, in terms of the provisions under Section 313 Cr.P.C., was recorded on 01.03.2024, wherein the accused persons inter alia denied their involvement in the present case and proclaimed that they were falsely implicated. Notably, under his said statement, the accused, namely, Irfan @ Gandhi inter alia asserted that the instant case has been falsely registered against him, despite him having nothing to do with the incident in question. Pertinent to reproduce the relevant extracts from the said statement of accused, Irfan @ Gandhi, recorded under Section 313 Cr.P.C. on 01.03.2024, as under;
"...Q. 1: It is in evidence against you that PW-1/Sh. Kashif has deposed that he/PW-1 was doing the work of artificial jewellery at Shakti Nagar, Delhi. It is further in evidence that as per PW-1, on 07.09.2017 at about 11:30 p.m., after taking dinner, he/PW-1 was going to near JPN (Irvin) Hospital for smoking on his/PW-1's two-wheeler bearing registration No. 5811, the initial number of which he did not remember. It is further in evidence that as per PW-1, when he reached near Delhi Gate Metro Station, he/PW-1 saw accused Irfan, who was correctly identified by PW-1 in court, giving beating to Abdul Majid. What do you have to say? Answer: It is incorrect.
Q. 2: It is in evidence against you that PW-1/Sh. Kashif has deposed that the accused Irfan was giving fist blows and was kicking Abdul Majid. It is further in evidence that as per PW-1, he/PW-1 went there and requested the accused Irfan to leave Abdul Majid, however, the accused Irfan did not listen to him/PW-1 and pushed him/PW-1 as well as the accused Irfan asked him/PW-1 to go away from there. It is further in evidence that as per PW-1, thereafter, he/PW-1 called his friend Faisal, however, in the meantime, accused Irfan fled away from there. It is further in evidence that as per PW-1, his/PW-1 friend Faisal arrived there.
What do you have to say? Digitally signed
by ABHISHEK
Answer: It is incorrect. ABHISHEK
GOYAL
GOYAL
Date:
2025.11.29
Q. 3: It is in evidence against you that PW-1/Sh.
16:49:55 +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 9 of 51 Kashif has deposed that Abdul Majid fell down on the road and became unconscious. It is further in evidence that as per PW-1, he/PW-1 and his/PW-1's friend threw little water on the face of Abdul Majid; however, Abdul Majid did not regain consciousness. It is further in evidence that as per PW-1, thereafter, he/PW-1 and Faisal took Abdul Majid to his/Abdul Majid's house on two-wheeler scooter. It is further in evidence that as per PW-1, Bablu, the elder brother of Abdul Majid met them outside his/Abdul Majid's house and they handed over Abdul Majid to him/Bablu and thereafter, they/PW-1 and Faisal left from there/Abdul Majid's home. What do you have to say?
Answer: It is incorrect.
Q. 4: It is in evidence against you that PW-1/Sh. Kashif has deposed that after about two days thereafter, he/PW-1 received a telephone call of police official, who called him/PW-1 at the police station. It is further in evidence that as per PW-1, he/PW-1 went there/Police Station, where the IO of the present case met him/PW-1, who made inquiry from him/PW-1 and recorded his/PW-1's statement which is Ex.PW-1/A, bearing signatures of PW-1 at point A. It is further in evidence that as per PW-1, thereafter, he/PW-1 left the police station. It is further in evidence that as per PW-1, subsequently, he/PW-1 was again called in the police station for about 2-3 times and he/PW-1 visited there. It is further in evidence that as per PW-1, Police officials obtained his signatures. It is further in evidence that as per PW-1, at the time of above said incident/incident in question, one more public person was standing at some distance from the spot, however, he/PW-1 neither knew him nor could he/PW-1 identify him/other public person. What do you have to say? Answer: It is incorrect.
Q. 5: It is in evidence against you that PW-1/Sh. Kashif has deposed that he/PW-1 had not seen any other person, who was giving beatings to Abdul Majid. It is further in evidence that as per PW-1, he/PW-1 had made complaint only against accused Irfan @ Gandhi. It is further in evidence that as per PW-1, he/PW-1 could not state/affirm as to how the name of accused Faiz @ Monu had come in his/PW-1's statement. It is further in evidence that as Digitally per PW-1, during investigation, he/PW-1 had shown signed by ABHISHEK the place of occurrence to the IO, who had prepared ABHISHEK GOYAL GOYAL Date:
the site plan Ex.PW-1/B at his/PW-1's instance, 2025.11.29 16:50:00 bearing signatures of PW-1 at point A. It is further in +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 10 of 51 evidence that as per PW-1, accused Irfan @ Gandhi was arrested at his/PW-1's instance vide arrest memo Ex.PW-1/C, bearing signatures of PW-1 at point A. What do you have to say?
Answer: It is incorrect.
*** *** *** Q. 35: Why was this case registered against you? Answer: A false case has been registered against me.
Q. 36: Why have the PWs deposed against you? Answer: They are interest witnesses and have deposed falsely against me.
Q. 37: Do you want to lead any evidence in your defence?
Answer: No. Q. 38: Do you want to say anything else?
Answer: I am innocent and have been falsely implicated in the present case..."
(Emphasis supplied) 9.1. Correspondingly, accused, Faiz @ Monu denied his involvement in the present case and his false implication. Apposite to reproduce, relevant extracts from the statement of accused, Faiz @ Monu, recorded under Section 313 Cr.P.C. on 01.03.2024, as under;
"...Q. 35: Why was this case registered against you?
Answer: A false case has been registered against me.
Q. 36: Why have the PWs deposed against you? Answer: They are interest witnesses and have deposed falsely against me.
Q. 37: Do you want to lead any evidence in your defence?
Answer: No. Q. 38: Do you want to say anything else? Answer: I am innocent and have been falsely implicated in the present case..." Digitally signed (Emphasis supplied) by ABHISHEK ABHISHEK GOYAL Date:
GOYAL 2025.11.29
16:50:05
+0530
SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 11 of 51
9.2. As aforenoted, both the accused persons, in their respective statements, recorded under Section 313 Cr.P.C., opted not to lead any evidence/defence evidence in support of their defence/assertion, leading to the closure of their defence evidence. Thereupon, arguments were addressed in the instant case by/on behalf of the Ld. Counsel for the accused persons as well as by Ld. Addl. PP for the State. Markedly, during the course of arguments before this Court, an application under Section 311 Cr.P.C./Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as 'BNSS') for recalling PW-1/Kashif was moved by/on behalf of the State. However, the said application was dismissed by this Court vide order dated 06.03.2025, inter alia under the following observations;
"...9. Consequently, being wary of the principles hereinunder noted, this Court deems it pertinent to consider the submission raised by the Ld. Counsel for the applicant/State and Ld. Chief Legal Aid Defence Counsel for the accused, at this stage. Notably, it is observed from a conscientious perusal of the instant application that the only ground/reason specified therein by/on behalf of the State, seeking recalling of PW-1/Kashif is that the said witness was not cross examined on the aspect of date of occurrence due to inadvertence and that such cross examination is necessary for just adjudication of the present case. However, when the material placed on record is scrupulously analyzed, it is observed that PW-1/Kashif was examined first before this Court on 12.02.2018, followed by his further examination on 17.02.2018 and 23.03.2019. Strikingly, during the said interval, PW-1/Kashif was not only tendered his deposition in his examined in chief, rather, was also cross examined by/on behalf of the State on 17.02.2018, on the ground that he was resiling from his earlier statement. Needless to mention that during the course of entire deposition of PW-1/Kashif, the witness was not only subjected to rigorous cross examination by/at behest of the State, rather, also vigorously cross examined by/at the behest of the Digitally signed by accused persons. In fact, it is only during the course of ABHISHEK ABHISHEK GOYAL arguments during the course of arguments, Ld. Chief GOYAL Date:
2025.11.29 Legal Aid Defence Counsel, raised an 16:50:09 +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 12 of 51 objection/contended that PW-1/Kashif did not support the prosecution case as he did not even depose the date of alleged incident as 04.09.2017, Ld. Addl. PP for the State has endeavored to fill in the said lacunae by seeking recalling of the said witness, bereft of any reasons, convincing this Court to concede with the entreaty made. Clearly, the present application was moved by/on behalf of the State only when the lacunae/omission in the prosecution's case were pointed out by Ld. Chief Legal Aid Defence Counsel during the course of arguments by seeking recalling of PW-1, which in the considered opinion of this Court, cannot be permitted at this stage. Apposite for the purpose of present discourse to reproduce here, the relevant extracts of the decision in Shri Kishan Lal Agarwal v. Central Bureau of Investigation, WP (Crl.) 1582/2021, dated 01.02.2023 (DHC), wherein the Hon'ble High Court of Delhi, whilst confronted with an akin situation observed as under;
*** *** ***
10. Markedly, in light of the foregoing it is quite lucid that the facts and circumstances brought forth are clearly covered under the aforesaid dictate of the Hon'ble High Court. Needless to reiterate that in the instant application, except for the reason that due to inadvertence, necessary cross examination of PW-1 could not be conducted by/at the behest of the State, no other reasons are forthcoming, in favour of entreaty to summon the said witness, especially, as aforenoted, PW-1/Kashif tendered his evidence before this Court on 12.02.2018, 17.02.2018 and 23.03.2019 and during which period, he not only tendered his evidence in chief, rather, was vigorously cross examined by/on behalf of the accused persons as well as (even) by Ld. Addl. PP for the State. Further, as aforementioned, the instant application was filed by/on behalf of the State only after the lacunae in the prosecution case were pointed out by the Ld. Chief Legal Aid Defence Counsel during the course of arguments in the present case. Clearly, the endevour in the instant case appears to fill in the lacunae, as hereinunder observed, besides to delay the trial in the present case, which cannot be permitted by this Court.
Needless to further note that the superior courts have persistently avowed that witnesses cannot be expected to face the hardship of appearing in court repeatedly, solely due to lack, omission or incompetence of counsel or parties. Digitally signed by
11. Consequently, in light of the foregoing ABHISHEK ABHISHEK GOYAL discussion, this Court reiterates that no grounds and/or GOYAL Date:
2025.11.29 16:50:14 reasons are forthcoming, either from the contents of +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 13 of 51 the instant application or from the arguments addressed by the Ld. Addl. PP for the State, convincing this Court to exercise its discretion under Section 311 Cr.P.C.
12. Conclusively, the present application of Ld. Addl. PP for the State, under Section 311 Cr.P.C., seeking summoning/recalling of PW-1/Kashif, deserves to be dismissed and is hereby dismissed..."
(Emphasis supplied) CONTENTIONS OF STATE:
10. Ld. Addl. PP for the State outrightly submitted that from the material placed on record and, in particular, from the testimony of PW-1/complainant, the role, complicity as well as active involvement of the accused persons in the commission of the offences alleged against them stand proved. As per the Ld. Addl. PP for the State, the complainant/PW-1, in her testimony, has specifically deposed about the commission of incident by the accused Irfan @ Gandhi, besides Ld. Addl. PP for the State asserted that the complainant has been consistent in his said deposition as well as his earlier assertions before the police officials in so far as the role of the said accused is concerned.
Further, as per Ld. Addl. PP for the State, the complainant has withstood rigors of cross-examination on behalf of the accused persons wherein, nothing has come forth to belie his consistent version against accused Irfan @ Gandhi. In this regard, Ld. Addl. PP for the State further strenuously contended that the law is trite that even when a witness does not completely support the case of the prosecution, testimony of such witness cannot be negated in its entirety, rather, the same can still form the basis of conviction of an accused. Further, as per the Ld. Addl. PP for the State, the accused persons, despite being afforded an opportunity to lead evidence, deliberately opted not to produce any evidence/witness in the Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.11.29 16:50:19 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 14 of 51 +0530 support of their assertion/defence. Correspondingly, Ld. Addl. PP for the State asserted that in their statement under Section 313 Cr.P.C, the accused persons merely/blatantly denied the allegations against them, without offering any explanation to their conduct, disentitling them to claim any indulgence in the present case. Accordingly, Ld. Addl. PP for the State reiterated that from the material, evidence and documents, placed on record the charges levelled against the accused persons stand duly proved, making them liable for the offences/charges levelled against them. CONTENTIONS OF DEFENCE:
11. Per contra, Ld. Chief Legal Aid Defence Counsel/Ld. Counsel for the accused persons submitted that from the material placed on record, the ingredients of no offence, leave aside the offence(s)/charge(s) under Sections 304 IPC, are made out against the accused persons in the instant case. In this regard, Ld. Counsel vehemently asserted that there are material improvements, contradictions and variations in the statements of various prosecution witnesses, including that of the complainant/PW-1, belying the allegations against the accused persons.
Correspondingly, Ld. Counsel for the accused persons strenuously argued that all the witnesses, brought forth by the prosecution have failed to support the case against the accused persons. Ld. Counsel further argued that the delay in registration of FIR in the instant case is not explainable, besides, even the medical records placed on record do not indicate the exact cause of death of the deceased. Further, as per the Ld. Counsel, except for PW-1 and PW-3, who have been produced as 'so called' eyewitnesses to the alleged incident, there are no other witnesses/eyewitness to the alleged incident in question or attributing specific role qua the accused Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 15 of 51 2025.11.29 16:50:23 +0530 persons. Even otherwise, Ld. Counsel vehemently reiterated that the said witnesses have not supported the case of the prosecution and rendered themselves utterly and completely unreliable so as to form the basis of accused persons' conviction. Ld. Counsel further reiterated that from the material placed on record, even the basic ingredients of the allegations levelled/charge(s) framed against the accused persons are not made out/established in the instant case. Further, it was vehemently argued by the Ld. Counsel for the accused persons that the investigation in the present case has not been properly conducted as neither an endeavour made to join any independent witnesses nor attempt made to retrieve any CCTV footage, etc., of the vicinity of the alleged place of occurrence. Accordingly, in view of the foregoing submissions, Ld. Counsel submitted that the accused persons be permitted, benefit of doubt and consequently, acquitted of the charges levelled against them. APPEARANCE:
12. The arguments of Ld. Addl. PP for the State and that of Ld. Chief Legal Aid Defence Counsel/Ld. Counsel for the accused persons have been heard as well as the record(s), including the testimonies of various witnesses, document(s)/material/evidence placed on record (oral and documentary evidence), thoroughly perused. LEGAL PROVISIONS:
13. Before proceeding with the determination of the rival contentions of the parties, this Court deems it prudent to reproduce the provisions under law/IPC, relevant for the purpose(s) of present adjudication, as under;
"34. Acts done by several persons in furtherance Digitally of common intention-When a criminal act is done by signed by ABHISHEK several persons, in furtherance of the common ABHISHEK GOYAL GOYAL Date:
intention of all, each of such persons is liable for that 2025.11.29 16:50:30 +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 16 of 51 act in the same manner as if it were done by him alone.
*** *** ***
299. Culpable homicide-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
*** *** ***
304. Punishment for culpable homicide not amounting to murder-Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death..."
(Emphasis supplied)
14. Notably, from a perusal of the aforesaid, it is outrightly observed that the provisions under Section 34 IPC recognize the principle of vicarious liability1 in criminal jurisprudence, attracting culpability against a person for an act/offence, not committed by him but by another person with whom he shared the common intention. It is trite law2 that Section 34 IPC does not provide for a substantive offence, rather, envisages culpability on the part of an accused only upon the proof of two conditions, i.e., "the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime." Quite evidently3, mere common Digitally signed by ABHISHEK 1 ABHISHEK GOYAL Suresh v. State of U.P., (2001) 3 SCC 673.
2GOYAL Date:
Virendra Singh v. State of M.P., (2010) 8 SCC 407. 2025.11.29 3 16:50:35 Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545. +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 17 of 51 intention on the part of any such accused, per se may not attract the provisions under Section 34 IPC, sans an action in furtherance thereof. Strikingly, the Hon'ble Supreme Court in Ram Naresh v. State of U.P., (2024) 1 SCC 443, while explicating the contours of the provisions under Section 34 IPC inter alia remarked as under;
"7. A reading of Section 34 IPC reveals that when a criminal act is done by several persons with a common intention each of the person is liable for that act as it has been done by him alone. Therefore, where participation of the accused in a crime is proved and the common intention is also established, Section 34IPC would come into play. To attract Section 34IPC, it is not necessary that there must be a prior conspiracy or premeditated mind. The common intention can be formed even in the course of the incident i.e. during the occurrence of the crime.
*** *** ***
11. Assistance has been taken of para 26 of the decision of this Court in Krishnamurthy v. State of Karnataka [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri) 192], which is reproduced herein below: (SCC p. 537) "26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or Digitally perpetrators at the time and after the occurrence. signed by ABHISHEK The manner in which the accused arrived, ABHISHEK GOYAL GOYAL Date:
mounted the attack, nature and type of injuries 2025.11.29 16:50:38 inflicted, the weapon used, conduct or acts of the +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 18 of 51 co-assailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34IPC are satisfied. We must remember that Section 34IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants."
12. A plain reading of the above paragraph of Krishnamurthy case [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri) 192] reveals that for applying Section 34IPC there should be a common intention of all the co-accused persons which means community of purpose and common design. Common intention does not mean that the co-accused persons should have engaged in any discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. Common intention is a psychological fact and it can be formed a minute before the actual happening of the incidence or as stated earlier even during the occurrence of the incidence."
(Emphasis supplied)
15. Markedly, from the above, it is noted that in the instances where the provisions under Section 34 IPC are proposed to be invoked by the prosecution against accused persons, it is not mandatory to demonstrate that there such persons engaged in any prior discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. On the contrary, common intention may be formed at a spur of moment, even during the commission/occurrence of incident, which is to be discernible from the facts of circumstances of each case. Correspondingly, it is also a settled law that for proving formation of common intention Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.11.29 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 19 of 51 16:50:43 +0530 by accused persons, direct evidence may seldomly be available, yet, in order to attract the provisions under Section 34 IPC, prosecution is under a bounden duty to prove that the participants had shared a common intention4. Reference, in regard the foregoing is further made to the decision in Virendra Singh v. State of M.P., (2010) 8 SCC 407, wherein the Hon'ble Supreme Court, elucidated as under;
"38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.
39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed . In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under Section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinised by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent.
40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.
*** *** ***
42. Section 34 IPC does not create any distinct 4 Hon'ble High Court of Kerala in Khalid B.A. v. State of Kerala, 2021 SCC Online Ker 11875 , in this regard, remarked; "72. It is settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and Digitally signed by ABHISHEK the proved circumstances." (Emphasis supplied) GOYAL ABHISHEK Date:
SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 20 of 51 GOYAL 2025.11.29 16:50:49 +0530 offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34."
(Emphasis supplied)
16. In so far as accountability under Section 299/304 IPC is concerned, the prosecution is inter alia required to prove; '(i) death of a person; (ii) such death must have been caused by the act of another person/accused; (iii) the act by which death resulted must have been caused either with; (a) an intention of causing death; or (b) of intention of causing bodily injury, as is likely to cause death; or (c) with the knowledge that such an act is likely to cause death.'. Reference in this regard is made to the decision of the Hon'ble Supreme Court in Tularam v. State of M.P., (2018) 7 SCC 777, wherein the Hon'ble Court, noted in an akin context, as under;
"7. Section 299 IPC explains culpable homicide as causing death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that the act complained of is likely to cause death. The first two categories require the intention to cause death or the likelihood of causing death while the third category confines itself to the knowledge that the act complained of is likely to Digitally signed by ABHISHEK cause death..." ABHISHEK GOYAL GOYAL Date:
(Emphasis supplied) 2025.11.29
16:50:53
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17. Germane to note in respect of the foregoing that in the cases where occurrence of homicide is proved 5, courts are, then, required to determine whether such homicide would be covered within the ambit of Section 299 IPC, as culpable homicide or whether the same would amount to the offence of murder, as specified/defined under Section 300 IPC, punishable under Section 302 IPC. Needless to note in this regard that the superior courts have persistently avowed in the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. Apposite in this regard to make a reference to the decision in State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382, wherein the Hon'ble Apex Court, iterated with unambiguity, as under;
"12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree".
This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
*** *** ***
21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.11.29 16:50:57 5 Chunni Bai v. State of Chhattisgarh, 2025 SCC OnLine SC 955. +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 22 of 51 at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section
299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code..."
(Emphasis supplied)
18. Here, this Court deems it further pertinent to make a reference to the decision of the Hon'ble Supreme Court in Anbazhagan v. State, 2023 SCC Online SC 857, wherein the Hon'ble Court, while carrying out an exhaustive review of the provisions and judicial precedents determining culpability under the provisions under Sections 299/304 IPC or that under Sections 300/302 IPC, summarized, as under;
"66. Few important principles of law discernible from the aforesaid discussion may be summed up thus:-
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act.
If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate:'A' is bound hand and foot. 'B' Digitally signed by ABHISHEK comes and placing his revolver against the head of ABHISHEK GOYAL GOYAL Date:
'A', shoots 'A' in his head killing him 2025.11.29 16:51:00 +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 23 of 51 instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is Digitally signed by punishable under the second part of Section 304. In ABHISHEK ABHISHEK GOYAL effect, therefore, the first part of this section would GOYAL Date:
2025.11.29 16:51:04 apply when there is 'guilty intention,' whereas the +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 24 of 51 second part would apply when there is no such intention, but there is 'guilty knowledge'. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3 rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder Digitally signed by ABHISHEK and those not amounting to murder would fall. ABHISHEK GOYAL GOYAL Date:
Culpable homicide is not murder when the case is 2025.11.29 16:51:09 +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 25 of 51 brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence Digitally squarely falls under Clause thirdly of Section 300 of signed by ABHISHEK the IPC unless one of the exceptions applies. ABHISHEK GOYAL GOYAL Date:
2025.11.29 (12) In determining the question, whether an 16:51:14 +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 26 of 51 accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC..."
(Emphasis supplied)
19. Correspondingly, the Hon'ble Supreme Court in Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444, explicated the divergence of culpability under Sections 299/304 IPC and Sections 300/302 IPC, and the manner of ascertaining 'intention' in a given case, noted as under;
"29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters -- plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury; Digitally
(v) whether the act was in the course of sudden quarrel signed by ABHISHEK GOYAL ABHISHEK or sudden fight or free for all fight; (vi) whether the GOYAL Date:
2025.11.29 incident occurs by chance or whether there was any 16:51:19 +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 27 of 51 premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."
(Emphasis supplied) APPRECIATION OF EVIDENCE:
20. Therefore, being wary of the aforenoted legal principles, judicial dictates and the rival contentions of the Ld. Addl. PP for the State as well as that of Ld. Counsel for the accused, this Court would proceed with the determination of the merits of the instant case. In particular and outrightly to the effect as to, 'whether from the material placed on record, culpability under Section 304/34 IPC can be attracted against the accused persons in the instant case?' In this regard, this Court outrightly notes that the prosecution endeavoured to build its case against the accused persons on the basis of the deposition of PW-1/complainant/Kashif and PW-3/Fasial. However, in this regard, this Court outrightly notes that from a conscientious perusal of the testimony of PW-3, it is noted that the said witness has not supported the case of the prosecution, notwithstanding an exhaustive cross examination by Ld. Addl. PP for the State. In fact, PW-3 deposed before this Court that on 04.09.2017 at around 11:45 p.m., he received a telephonic call from Kashif, informing him/PW-3 that a quarrel was going on at Delhi Gate between his/Kasif's brother Majid and other persons. Consequently, as per PW-3, he went to the said spot, where he found Kasif and Majid. Digitally signed by ABHISHEK ABHISHEK GOYAL Date:
GOYAL 2025.11.29
SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 28 of 51 16:51:24
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As per PW-3, Majid was lying unconscious on the ground at that point in time, whilst Kasif was standing near Majid. Consequently, they (PW-3 and Kashif) shifted Majid to his house by a scooter and subsequently, IO recorded the statement of PW-3. Clearly, nowhere under his deposition, PW-3 testified regarding him having witnessed any incident or even deposed of the names of the persons, who allegedly gave beating to Majid. Ergo, under such circumstances, PW-3 was declared, hostile and, as aforenoted, cross-examined by Ld. Addl. PP, wherein PW-3 deposed as under;
"XXXXXX by Ld. Addl. Public Prosecutor for State.
I did not state before police in my statement that when I reached the spot I saw that two persons were beating Majid. (Confronted with portion A to A of statement Mark PW3/1 where it is so recorded.) I did not state before police that we tried to intervene in the quarrel and accused Irfan started beating us and again said two persons started beating Majid. (Confronted with portion B to B of statement Mark PW3/1 where it is so recorded.) It is wrong to suggest that I had seen accused Irfan and his associates while beating Majid. It is wrong to suggest that Irfan had also tried to beat us. It is wrong to suggest that I am deposing falsely as I have been won over by the accused persons"
(Emphasis supplied)
21. Quite evidently, it is seen from above that despite a thorough cross examination by Ld. Addl. PP for the State, PW-3 denied of him having witnessed any incident of two persons beating Majid or of him asserting before the police officials that as he and Kashif tried to intervene, accused Irfan started beating him. Correspondingly, PW-3 further denied that he had seen Irfan and his associates, beating Majid or even that he was deposing falsely under the influence of accused persons. Clearly, in light of thorough hostility of the said witness/PW-3, prosecution aspired to Digitally build its case against the accused persons on the deposition of the signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.11.29 16:51:29 +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 29 of 51 complainant/PW-1/Kashif, who testified before this Court that on 07.09.2017 at around 11:30 p.m., after taking dinner, he was proceeding for JPN (Irvin) Hospital for a smoke, on his two-
wheeler bearing registration no. 5811. It was further proclaimed by PW-1 that when he reached near Delhi Gate Metro Station, he saw that accused Irfan, who was correctly identified by the complainant in Court, beating the deceased, namely, Abdul Majid. As per PW-1, the said accused was giving fist blows as well as kicking the deceased. Correspondingly, PW-1 proclaimed that he went there and requested the accused Irfan to leave the deceased/Abdul Majid. However, the accused Irfan did not listen to him/PW-1 and pushed him, while asking him/PW-1 to go away from the said spot. PW-1 further asserted that, thereafter, he called his friend Faisal. However, in the meanwhile, the accused Irfan fled from the spot. Thereafter, as per PW-1, Faisal arrived at the spot, however, Abdul Majid fell down on the road and became unconscious. As per PW-1, both, Faisal and he, threw little water on the face of Abdul Majid, however, Abdul Majid did not regain consciousness. It was further avowed by the complainant/PW-1 that subsequently, Faisal and he/PW-1, took Abdul Majid to his/Abdul Majid's house on two-wheeler scooter, where the deceased's/Abdul Majid's elder brother, Bablu met them, outside his house and they handed over Abdul Majid to him/Bablu and left from deceased's house. Further, as per PW-1, around two days thereafter, he/PW-1, received a telephone call from police officials, asking PW-1 to reach at the police station. Ergo, as per PW-1, when he reached at the police station, the IO of the case met him, made enquiries from him and recorded his/complainant's statement (Ex. PW1/A). As per PW-1, he was called to the police Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.11.29 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 30 of 51 16:51:34 +0530 stations two-three times, subsequently, as well, where the police officials obtained his/PW-1's signatures. Markedly, as per PW-1, one more public person was standing at the spot at some distance from the spot, however, PW-1 expressed inability to identify the said person. Congruently, PW-1 deposed that he had not seen any other person give beating to Abdul Majid and further avowed that he had made a complaint only against accused Irfan @ Gandhi. In fact, PW-1 further avowed that he could not tell as to how the name of accused Faiz @ Monu surfaced under his statement. Nonetheless, PW-1 proclaimed that he had shown the place of occurrence to the IO, who prepared site plan (Ex.PW1/B) at his/PW-1's instance, besides as per PW-1, accused Irfan @ Gandhi was also arrested at his instance vide arrest memo Ex. PW1/C.
22. Significantly, since PW-1 did not support the case of the prosecution in its entirety, he/PW-1 was cross examined by Ld. Addl. PP for the State, wherein PW-1 proclaimed, as under;
"XXXXXX by Ld. Addl. Public Prosecutor for State.
It is correct that complaint Ex.PW1/A was recorded in my presence and same bears my signatures at point A. (Vol. Complaint was recorded 5-6 times.) I have studied up to class 8th. I can read Hindi.
I did not state before police that when I reached near Telephone Exchange Building I saw deceased Abdul Majid standing with accused Faiz Mohd. @ Monu also and some quarrel took place between them and accused Faiz Mohd. @ Monu also started beating Abdul Majid. (Confronted with portion A to A of complaint Ex.PW1/A where the fact about the presence of accused Faiz Mohd. @ Monu and his role regarding giving beatings to deceased is mentioned.) (Vol. Only Irfan @ Gandhi was quarreling with Abdul Majid and he had beaten Abdul Majid.) I did not state Digitally signed by before police in my statement that despite my ABHISHEK ABHISHEK GOYAL interference in the quarrel accused Faiz Mohd. @ GOYAL Date:
2025.11.29 Monu also continued giving beatings to Abdul Majid 16:51:39 +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 31 of 51 and he caused him fallen on the ground forcefully. (Confronted with portion B to B of complaint Ex.PW1/A where the role of accused Faiz Mohd. @ Monu is mentioned.) I did not object about the mentioning of role of Faiz Mohd @ Monu in my statement Ex.PW1/A. (Vol. I was not allowed to read the statement by the IO before taking my signatures.) It is wrong to suggest that accused Faiz Mohd. @ Monu was also present at the spot or that he had also given beatings to deceased Abdul Majid. It is wrong to suggest that accused Faiz Mohd. @ Monu had also caused Abdul Majid fallen forcefully on the ground. It is wrong to suggest that his name was also mentioned by me in my statement Ex.PW1/A. It is wrong to suggest that I had read my statement before signing the same. It is wrong to suggest that I did not object about the mentioning of name of accused Faiz Mohd. @ Monu in the complaint as he had also given beatings to deceased. It is wrong to suggest that accused Faiz Mohd. @ Monu was also arrested at my instance. It is correct that arrest memo of Faiz @ Monu Ex.PW1/D bears my signatures at point A. (Vol. Police had taken my signatures on some blank forms.) It is wrong to suggest that accused Faiz Mohd. @ Monu was arrested at my instance so my signatures are appearing on his arrest memo. It is wrong to suggest that I am deposing falsely on the confronted portion about the role of accused Faiz Mohd. @ Monu as I have been won over by the accused Faiz Mohd. @ Monu or his family members"
(Emphasis supplied)
23. Apposite to further note here that PW-1, upon being cross examined by/on behalf of the accused persons, proclaimed, as under;
"XXXXXX by Sh. ***, Ld. Counsel for accused Faiz Mohd. @ Monu.
It is correct that the place of occurrence was ground and was having grass. When Faisal came to the spot, accused Irfan @ Gandhi had already run away along with some other person. It is wrong to suggest that I was not present at the spot or that I am deposing falsely.
*** *** *** XXXXXX by Sh. ***, Advocate, Ld. Amicus Curiae for accused Irfan @ Gandhi @ Dada. I have been residing in Delhi since my birth. I am serving in a jewellery shop. It is correct that I had not Digitally signed by ABHISHEK SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 32 of 51 ABHISHEK GOYAL GOYAL Date:
2025.11.29 16:51:45 +0530 made call to PCR at number 100 regarding this occurrence. Nor had I gone to police station of my own. It is wrong to suggest that when I visited house of Majid, I did not disclose anything to relative of Majid. The distance between Delhi Gate No. 3 Metro Station and the Police Station is about 25 to 30 steps. It would take around three to four minutes to reach police station on foot. The distance between Delhi Gate No. 3 Metro Station and LNJP Hospital is also 25 to 30 steps and it takes about three to four minutes to reach there on foot. It is correct that I had not taken Majid to hospital. I do not remember the exact date as to when I met police for the first time in connection with this case but I remember I met police on the day following the day of occurrence. Police had not issued any written notice to me to join investigation. I might have visited the police station four or five times in connection with this case. It is wrong to suggest that I am not an eyewitness or that I have deposed falsely in order to falsely implicate the accused."
(Emphasis supplied)
24. Conspicuously, from a conscientious perusal of the material on record, it is noted that except the aforenoted witnesses, i.e., PW-1 and PW-3, the prosecution has not adduced any other witnesses as alleged eyewitnesses of the incident in question. Ergo, under such circumstances, the question that falls for consideration before this Court, whether the conviction of the accused can be premised on the testimonies of the said eyewitnesses alone. In this regard, this Court deems it pertinent to note at this stage that it is mindful of the repeated avowals 6 of the superior courts, in a catena of judicial dictates/decisions, that there is no bar/legal impediment in convicting a person even on the basis of testimony of a sole/single witness, if the version so put forth by such a witness is clear and reliable. Unquestionably, reason behind the same is that the evidence, 'has to be weighed and not counted'. Reference in this regard is made to the decision of the Hon'ble Supreme Court in Sunil Kumar v. State (Govt. of NCT of Delhi), Digitally signed by ABHISHEK 6 ABHISHEK GOYAL Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680. GOYAL Date:
2025.11.29 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 33 of 51 16:52:27 +0530 (2003) 11 SCC 367, wherein the Hon'ble Court unambiguously observed, as under;
"9. ...Vadivelu Thevar case [AIR 1957 SC 614: 1957 Cri LJ 1000] was referred to with approval in the case of Jagdish Prasad v. State of M.P. [1995 SCC (Cri) 160: AIR 1994 SC 1251] This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-
honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise..."
(Emphasis supplied)
25. Quite evidently, it is seen from the above that a conviction of an accused can be premised on the testimony, even of a single/sole witness. However, the same is permissible only where such a testimony is of 'sterling7' quality, so as to be able to be relied upon, without any corroboration. Notably, the term(s), 'sterling witness'/'sterling testimony' in criminal jurisprudence has been repeatedly declared by superior courts to mean a witness who is8, "worthy of credence, one who is reliable and truthful." Reference in this regard is further made to the decision in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 , wherein the Hon'ble Supreme Court, catalogued the quality of a ' sterling witness', under the following observations;
"22. ...In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The Digitally signed by ABHISHEK 7 ABHISHEK GOYAL Bhimapa Chandapa Hosamani & Ors. v. State of Karnataka, (2006) 11 SCC 323. 8 GOYAL Date:
Kuriya v. State of Rajasthan, (2012) 10 SCC 433. 2025.11.29 16:52:37 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 34 of 51 +0530 court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged..."
(Emphasis supplied)
26. Consequently, being wary of the aforenoted principles, when the material/evidence placed on record is conscientiously evaluated, this Court unwaveringly reaches a Digitally conclusion that the testimonies of PW-1/complainant or that of ABHISHEK signed by ABHISHEK GOYAL GOYAL Date:
SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 35 of 51 2025.11.29 16:52:42 +0530 PW-3/Fasial are far from being termed as 'sterling' in nature so as to form the sole basis of conviction of the accused persons. In this regard, this Court deems it apposite to note that, as aforenoted, PW-3 has not supported the case of the prosecution in as much as the witness, despite an exhaustive and thorough cross examination by Ld. Addl. PP for the State, persevered to depose that he had not witnessed the accused persons beat the deceased nor as per PW-3, accused Irfan @ Gandhi tried to beat him/PW-3 and PW-1 as they tried to intervene in the alleged scuffle. In fact, even the complainant/PW-1 proceeded to depose before this Court that PW-3/Faisal had reached at the spot only after accused Irfan @ Gandhi had already run away/fled along with some other person. Clearly, the deposition of PW-3, in the considered opinion of this Court, is insufficient to lend any credence to the story put forth by the prosecution against the accused persons in so far as it relates to their complicity/involvement in the present case, either in itself or whilst being read in conjunction with other material/evidence, brought forth.
27. In as much as the testimony of PW-1 is concerned, it is noted from above that the complainant/PW-1 only deposed of the role of accused Irfan @ Gandhi in beating the deceased, and as aforenoted, feigned complete ignorance as to how the name of co- accused Faiz Mohd. @ Monu, cropped under his complaint. In fact, as aforenoted, PW-1 irresolutely deposed under his examination in chief that he had not seen any other person give beating to Abdul Majid and further proclaimed that he had made complaint, only against accused Irfan @ Gandhi. In fact, despite being rigorously cross examined by Ld. Addl. PP for the State, PW-1 continued to depose that he did not see Faiz Mohd. @ Monu Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.11.29 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 36 of 51 16:52:47 +0530 beat the deceased and he/PW-1 even denied that despite his/PW-1's interference, accused Faiz Mohd. @ Monu continued to beat the deceased. Quite ominously, upon being confronted as to why he/PW-1 did not object to the mentioning of the name of co- accused Faiz Mohd. @ Monu under his complaint (Ex. PW1/A), PW-1 volunteered/went on to the extent to assert that he was not permitted to read the said complaint before his signatures were obtained by the police officials on the same.
28. Congruently, as aforenoted, PW-1 explicitly denied during the course of his cross examination that when he visited the house of Majid/deceased, he did not disclose anything to the relatives of the deceased. However, it is seen from the records that nowhere under his examination in chief, PW-1 deposed of having informed anything to the relatives of the deceased about the incident. In fact, PW-1 merely proclaimed under his examination in chief that he/PW-1 and Faisal/PW-3, "... took Abdul Majid to his house on two wheeler scooter. Bablu elder brother of Abdul Majid met us outside his house and we handed over Abdul Majid to him and thereafter we left from there ...". Needless to mention that nowhere under his deposition, PW-3 deposed of any such intimation of the incident by PW-1 or by him/PW-3 to any of the relatives of the deceased, when they dropped the deceased to his home, as asserted by the said witnesses. Pertinent in this regard to further make a reference to the deposition of PW-4/Abdul Fahim, who also did not avow regarding Kasif's informing him of the alleged incident. On the contrary, PW-4 merely deposed that on 04.09.2017, at around 11:45 p.m., his cousin/Kasif brought PW-4's younger brother Majid to their house and that he/PW-4 made Majid lie down with the help of Kasif and thereafter Digitally signed by ABHISHEK ABHISHEK GOYAL SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 37 of 51 GOYAL Date:
2025.11.29 16:52:52 +0530 he/PW-4 went to sleep. Needless to further note that even PW-6/Ms. Farhana, wife of PW-4 also did not depose anywhere during the course of her deposition that PW-1 informed them of the alleged incident, except to the extent that Majid was found lying at Delhi Gate. Correspondingly, PW-6 only deposed that on 04.09.2017 at about 11:45 p.m., PW-1 brought her/PW-6's brother-in-law Majid to their home, whereupon she/PW-6 and her husband/PW-4 made Majid lie down, with the help of Kasif/PW-1.
29. At the same time, it is noted from a punctilious appreciation of the deposition of PW-1 that during the course of his cross examination, PW-1 admitted that he had not made call to PCR at number 100 regarding the occurrence in question, nor had he gone to the police station on his own. Correspondingly, PW-1 further proclaimed during his cross examination that he could not recollect the exact date, when he had first visited the police station, nonetheless, avowed that it was the date following the incident.
However, the said averment is in contradiction to PW-1's own assertion under his examination-in-cheif, wherein he proclaimed that two days after the incident, he received a telephone call from the police official, who call him to the police station. Even then, when the said proclamation by PW-1 is seen in light of the other material brought on record, it is noted that the same does not find any support/credence. In particular, reference in this regard is made to the deposition of PW-9/ASI Bajrang, who deposed before this Court that on 07.09.2017, while he/PW-9 was posted as ASI at PS Chandni Mahal, the complainant/PW-1 reached there, whereupon, he/PW-9 recorded the statement (Ex. PW1/A) of the complainant. PW-9 further asserted that thereafter, he/PW-9 took/produced the complainant before SI Dinesh, PS. Darya Digitally signed by ABHISHEK ABHISHEK GOYAL SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 38 of 51 GOYAL Date:
2025.11.29 16:52:56 +0530 Ganj/PW-11, on the instruction of SHO, PS. Chandni Mahal. Further, as per PW-9, at that point in time, he also handed over the statement of the complaint as well as copy of the DD entry to SI Dinesh. Markedly, PW-11/SI Dinesh deposed on the same lines as PW-9, inter alia proclaiming that on 07.09.2017, while he/PW-11 was posted at PS. Darya Ganj, PW-9/ASI Bajrang along with complainant/PW-1/Mohd. Kasif, his complaint and DD entry No. 34A, PS. Chandni Mahal (Ex.PW11/A) came to PS Darya Ganj and produced the same before Duty Officer, PS Darya Ganj. Further, as per PW-11, the same was recorded vide DD No. 4A and it was marked to him/PW-11, upon which the instant FIR came to be registered. Clearly, when the deposition of PW-1 is seen in comparison to the testimonies of PW-9 and PW-11, it is quite apparent and accordingly, reiterated that the assertion of the complainant that he was called to the police station and that he had not visited the police station on his own or that he had gone to the police station on the day, following the date of alleged occurrence or two days thereafter, do not support/credibility, belying further the version of incident, put forth by the complainant before this Court. Needless to further mention that despite the assertion of PW-1 that he was called to the police station, PW-1 affirmed that the police had not issued him any written notice to join the investigation, creating a further dent in the version of PW-1.
30. Simultaneously, it is observed that PW-1, while giving a complete exoneration to accused Faiz Mohd. @ Monu under his testimony, continued to level allegation against accused, Irfan @ Gandhi, it was incumbent on the prosecution to show from other material on record, the role and complicity of the accused persons the commission of the alleged offence, which the Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 39 of 51 2025.11.29 16:53:00 +0530 prosecution, in the considered opinion of this Court, failed to do so in the instant case. Here, this Court deems it pertinent to note that though it is conscious that the maxim, 'falsus in uno falsus in omnibus' has no application in India, however, despite the aforenoted ambiguity in the deposition of PW-1 and PW-3, in the reiterated that the evidence brought on record is not sufficient, in the considered opinion of this Court to unambiguously bring home the charges even (and solely) against the accused Irfan @ Gandhi in the instant case. Needless to mention that there are no independent witnesses or other material in the form electronic record so as to bring home charges against either or both the accused persons.
31. Despondently, notwithstanding the foregoing discrepancies, it is noted from the record that also material lacunae in medical records of the deceased and the deposition of the concerned Doctors, i.e., PW-2/Dr. A. Arthy and PW-12/Dr. Sejal Sudhakar Bhangle and the relatives of the deceased, i.e., PW-4/Abdul Fahim, PW-5/Ms. Sakina and PW-6/Ms. Farhana. In this regard, this Court deems it pertinent to outrightly note that PW-1 affirmed during the course of his cross examination that he had not taken the deceased to the Hospital. In fact, it was only on
05.09.2017, as per PW-4, PW-5 and PW-6, that the deceased was taken to Lok Nayak Hospital. However, in this regard, while PW-4/Abdul Fahim deposed that he had taken the deceased to the Hospital with the help of some residents of the gali, PW-5/Ms. Sakina deposed that PW-4 and PW-6 took the deceased to the Hospital, with the help of the boys of the locality. In distinction, PW-6/Ms. Farhana deposed that the deceased was taken to Hospital by PW-4, PW-5 and PW-6. Here, it is further pertinent to Digitally signed by ABHISHEK ABHISHEK GOYAL SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 40 of 51 GOYAL Date:
2025.11.29 16:53:04 +0530 note that while, PW-5 and PW-6 both asserted that PW-5/Ms. Sakina, on receiving a call from PW-6/Ms. Farhana, reached at PW-6's house on 05.09.2017, whereupon the deceased was shifted to the Hospital. However, nowhere under his deposition, PW-4/Abdul Fahim asserted that PW-5 had, in fact, visited their house on the said day. Correspondingly, PW-5/Ms. Sakina deposed before this Court that in the Hospital, deceased had regained consciousness slightly and had informed by gestures that Mohd. Kasif/PW-1 was aware as to how he/the deceased had sustained injuries. However, it is seen from the records that it was only for the first time that during the course of her deposition before this Court that PW-5 testified regarding the said fact. In fact, PW-5 was confronted on the said aspect with her previous statement/statement under Section 161 Cr.P.C. (Mark PW5/1), during the course of her cross examination by/at the behest of the accused persons, where the said fact was not so record. Even otherwise, the factum of the deceased's regaining slight consciousness or of him informing about the complainant's knowledge of the alleged incident by gestures, is not corroborated by the deposition of any other witnesses. Needless to mention that even PW-5 did not disclose under her deposition, the exact date or time, when the deceased allegedly regained consciousness and informed of the complainant's said awareness/knowledge of the incident.
32. Markedly, the said factor gains significance in light of the deposition of PW-12/Dr. Sejal Sudhakar Bhangle, Senior Resident, Rajeev Gandhi Super Specialty Hospital, Dilshad Garden, who deposed that when the patient/Abdul Majid was brought to their department, he was unconscious and that the said Digitally signed by ABHISHEK ABHISHEK GOYAL SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 41 of 51 GOYAL Date:
2025.11.29 16:53:08 +0530 patient required emergency surgery. Correspondingly, PW-12 further proclaimed that that after surgery, Abdul Majid was unconscious and on ventilator support. In fact, during the course of his cross examination, PW-12 inter alia affirmed that the deceased/patient, "...was unconscious during treatment in my presence and no talk took place with him...". Nonetheless, presuming for the sake of argument that the deceased, in fact, informed PW-5/Ms. Sakina that the complainant was aware of the incident, it is nowhere forthcoming under the deposition of PW-5/Ms. Sakina or that of under the deposition of PW-11/SI Dinesh or even under the testimony of PW-9/ASI Bajrang, that PW-5/Ms. Sakina apprised the concerned police officials of the said fact, i.e., of the deceased informing her that Kashif/PW-1 was aware of the incident in question. In fact, even PW-1 nowhere deposed before this Court that he had corresponded with PW-5/Ms. Sakina or that he had informed her/PW-5/Ms. Sakina regarding the incident in question at any point in time. In fact, during the course of his cross examination, PW-11 inter alia affirmed that, "...there was no call or complaint in connection with the present case at PS. Darya Ganj prior to 07.09.2017...I did not meet any family member of Abdul Majid in the hospital during my first visit...". Needless to reiterate the prosecution has failed to explain the apparent inconsistency in the deposition of PW-1 regarding him neither making a PCR call at 100 number regarding the occurrence, nor regarding him/PW-1 visiting the police station on his own, rather, only on receipt of phone call from the police officials, two days after the alleged incident vis-à-vis the assertion of PW-9/ASI Bajrang that the complainant had visited the police Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.11.29 16:53:12 +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 42 of 51 station Chandani Mahal on 07.09.2017, whereupon his complaint (Ex. PW1/A) was recorded.
33. Analogously, it is noted from a careful perusal of the deceased's MLC/Ex. PW12/A that the same specifically records, "...Pt. was brought to the casualty on 5/9/17 ć A/H/O fall from stairs as stated by pts. b/b...". In this regard, reference is made to the deposition of PW-12/Dr. Sejal Sudhakar Bhangle, who testified that in the year 2017, he was posted as Junior Resident, Neuro-Surgery Department, LNJP Hospital, Delhi and that on 07.09.2017, he prepared the MLC of the deceased Abdul Majid, who had been brought to Lok Nayak Hospital on 05.09.2017.
Correspondingly, it was deposed by PW-12 that as per the emergency slip prepared in the Hospital, some unknown persons had informed that the deceased had received injuries as he had fallen from stairs. Ergo, as per PW-12, due to the said factor, no MLC of the patient/Abdul Majid was prepared on 05.09.2017. It was further asserted by PW-12 that when the said patient was brought to their department, he was unconscious and required emergency surgery. Accordingly, as per PW-12, the said patient was operated upon on the same night. Thereafter, PW-12 avowed that post surgery, the patient was unconscious and was on ventilator support. Further, as per PW-12, on 07.09.2017, they were informed by the deceased's sister, namely, Sakina that the deceased had actually been assaulted, whereupon, the MLC of the deceased was prepared. Pertinently, PW-12 avowed that he had recorded the alleged history of fall from stairs of the deceased under his MCL on the basis of the documents prepared in the Hospital on 05.09.2017 as well as the reasons for non-preparation of the MLC on 05.09.2017. Correspondingly, PW-12 deposed that Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 43 of 51 2025.11.29 16:53:16 +0530 he had mentioned the date and time of arrival of the deceased on the MLC on the basis of the emergency slip dated 05.09.2017. Needless to mention, PW-12 proved the MLC as Ex. PW12/A and the emergency slip as Ex. PW12/B, proclaiming that the fact of deceased's fall from stairs is mentioned at page number twenty eight of Ex. PW12/B.
34. However, despite such factum of deceased's having sustained injury from a fall of stairs having being recorded under his MLC (Ex. PW12/A) and the emergency slip (Ex. PW12/B), the prosecution did not adduce any evidence/witness to clarify said alleged ambiguity, except to the aforenoted assertion of PW-12 that as per the emergency slip of the deceased, some unknown person had informed that the deceased had received injuries as he had fallen form the stairs. However, it is pertinent to further note that during the course of his cross examination, PW-12 avowed that he did not meet the person who brought the deceased to the Hospital on 05.09.2017. Clearly, PW-12 was not the progenitor of the said emergency slip (Ex. PW12/B) where the factum of the deceased's sustaining injury due to fall from the stairs is stated to be first recorded. Notwithstanding the same, the prosecution did not endeavour to adduce such progenitor of emergency slip to clarify the 'so called ambiguity' in the actual reason being the deceased's sustaining injury, i.e., having sustained injury due to the alleged acts of the accused persons, as proclaimed by the accused, in distinction to the factum of deceased's falling from stairs, as recorded under Ex. PW12/A and Ex. PW12/B. Here, it is further pertinent to note that PW-5/Ms. Sakina asserted during her evidence that they had not told in the Hospital that Abdul Majid had received injuries by falling from stairs. Rather, as per PW-5, Digitally signed by ABHISHEK ABHISHEK GOYAL SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 44 of 51 GOYAL Date:
2025.11.29 16:53:20 +0530 the said fact was recorded by the police on their own. Correspondingly, PW-6/Ms. Farhana, while reiterating that the factum of deceased fall from stairs was not told in the Hospital by them, reiterated that the said fact was recorded by the police on its own, besides it was also proclaimed by PW-6 that the boys of locality had mentioned the manner of receiving injuries by Abdul Majid in the Hospital. However, the assertion of PW-5 and PW-6 that the fact of deceased's falling from stairs was recorded by the police does not find support from material placed on record, especially, when it is nowhere asserted in the disposition of PW-4/Abdul Fahim or PW-5/Ms. Sakina or PW-6/Ms. Farhana that any of the police official was in fact present at the Hospital at the time when the deceased was shifted to the Hospital first on 05.09.2017. Needless to reiterate that the complaint in the instant case was first recorded on 07.09.2017 and as per PW-11, he had visited the police station, only when the investigation was assigned to him. However, as aforenoted, PW-12/Dr. Sejal Sudhakar deposed that the factum of the deceased's sustaining injury from a fall from stairs was first recorded under the deceased's emergency slip (Ex. PW12/B), when the deceased was first taken/received at the Hospital on 05.09.2017. Ergo, in light of the foregoing, this Court reiterates that it does not appeal to its senses that the factum of deceased's sustaining injury from a fall from stairs was recorded at the behest of the police officials in the isnatnt case, as asserted by PW-5 and PW-6. Apposite in respect of the foregoing, this Court deems it pertinent to reproduce the relevant extracts of cross examination/deposition of PW-11, as under;
"XXXXXX by Mr. ***, Ld. Amicus Curiae for Digitally signed by ABHISHEK both the accused persons, namely, Irfan @ Gandhi @ ABHISHEK GOYAL Date:
GOYAL Dada and Faiz @ Monu. 2025.11.29 16:53:24 +0530 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 45 of 51 There was no call or complaint in connection with the present case at PS Darya Ganj prior to 07.09.2017. I do not remember the exact time when investigation was handed over to me. However, the investigation was handed over to me during night. I did not visit the place of occurrence immediately. (Vol.: I went to hospital after the investigation was assigned to me.) I did not meet any family member of Abdul Majid in the hospital during my first visit. From the hospital, I along with the complainant visited the place of occurrence.***"
(Emphasis supplied)
35. Quite portentously, the dubiety in the case of the prosecution is further accentuated from the testimony of PW-2/Dr. A. Arthy, who prepared the postmortem report (Ex. PW2/A) of the deceased as well as tendered subsequent opinion (Ex. PW2/C) on the injuries of the deceased, at the request of the IO. Pertinent in this regard to note that PW-2 asserted during the course of his deposition before this Court that the cause of the deceased's death was, "... brain damage consequent upon blunt force trauma to the head. All wounds are ante-mortem in nature, consistent with being about 1-2 weeks old in duration and are produced by blunt force trauma...". However, as aforenoted, PW-2 further testified that on 10.10.2017, he had also given a subsequent opinion to the IO on his written request vide report no. FM/XII/(MLW)/Year of PM 2017/183/2017 dated 10.10.2017. As per PW-12, he had opined therein, "...the overall pattern of external injuries and brain findings suggest that these injuries are possible in a fall. It cannot be stated with certainty as to whether the fall is accidental or whether there has been homicide/suicide. Conclusions regarding the manner of death are for the investigating officer to draw after carrying out his investigation...". However, as aforenoted, despite the aforenoted uncertainity, prosecution made no endeavour to clarify the ambiguity and/or to determine the exact cause of the Digitally signed by ABHISHEK SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 46 of 51 ABHISHEK GOYAL GOYAL Date:
2025.11.29 16:53:29 +0530 deceased's demise, in particular, to pinpoint/relate the cause of deceased's demise due to the alleged incident.
36. Despairingly, in the instant case, the prosecution has further failed to produce any evidence/witness and/or explanation of delay in registration of FIR in the instant case. Appositely, as per the prosecution, the incident allegedly occurred on 04.09.2017.
However, despite the same, the complaint regarding the instant in question first came to be registered only on 07.09.2017 and the FIR was filed on the same day. Correspondingly, as aforenoted, PW-1 affirmed that he had neither made a PCR call at 100 number regarding the alleged occurrence nor visited the police station on his own, rather, two days after the alleged incident only on receipt of telephonic call from the concerned police officials. Needless to mention that none of the relatives of the deceased did not bother to make any complaint of the alleged incident till the said complaint (Ex. PW1/A) came to be registered at the behest of the complainant on 07.09.2017. Ergo, under such circumstances, the delay in registration of FIR in the instant case is not forthcoming/explainable from any material brought on record. However, considering the aforenoted lacunae in the case of the prosecution, non-explanation of delay in registration of FIR in the instant case gain significant momentum, casting a further dent as well as shroud of doubt, in the prosecution's story against the accused persons. In fact, in this regard, this Court deems it pertinent here to observe that it is a settled law 9 that delay in lodging/registration of complaint/FIR creates a doubt in the prosecution case, if the said delay is not properly explained. Reference in this regard is made to the decision in Mukesh v. State Digitally signed by ABHISHEK ABHISHEK GOYAL 9 Kishan Singh v. Gurpal Singh, (2010) 8 SCC 775 and Jasbir Singh v. State, 2022 SCC OnLine Del 1427. GOYAL Date:
2025.11.29 16:53:34 SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 47 of 51 +0530 (NCT of Delhi), (2017) 6 SCC 1 , wherein the Hon'ble Supreme Court, on the aspect of delay in registration of FIR, remarked as under;
"50. Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by the courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors. Even a long delay can be condoned if the informant has no motive for implicating the accused."
(Emphasis supplied)
37. Similarly, in respect of the aforesaid, the Hon'ble Supreme Court in Jai Prakash Singh v. State of Bihar, (2012) 4 SCC 379, observed as under;
"12. The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it loses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question..."
(Emphasis supplied)
38. Clearly, from a conscientious perusal of the material placed on record, no reasons, are forthcoming so as to indicate the reasons for not promptly reporting the incident. However, in light of the foregoing discrepancies, inconsistencies and/or lacunae in Digitally signed by ABHISHEK SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 48 of 51 ABHISHEK GOYAL GOYAL Date:
2025.11.29 16:53:38 +0530 the instant case, this Court fervently reiterates that the non- explanation of delay, even to the slightest extent, in deposition of either the complainant/PW-1 or any of the relatives of the deceased, i.e., PW-4, PW-5 or PW-6, in the considered opinion of this Court as well as foregoing judicial dictates, does accentuate the doubt/suspicion in the version put forth by the prosecution against the accused persons.
CONCLUSION:
39. Conclusively, in light of the foregoing discussion, this Court unambiguously records that from the material placed on record and arguments addressed on behalf of the State as well as by/on behalf of the accused persons, the prosecution, in the considered opinion of this Court, has been unable to prove its case 'beyond reasonable doubt' against the accused persons, namely, Irfan @ Gandhi @ Dada and Faiz @ Monu for the offences under Section 304/34 IPC, in view of the aforenoted discussion. As aforenoted, none of the 'so called' eyewitnesses to the incident, i.e., PW-1 or PW-3 attributed any role qua accused Faiz @ Monu regarding his complicity or involvement in the instant case. In fact, as aforenoted, PW-3 completely denied of having witnessed the incident or him having any personal knowledge about the alleged occurrence or that of the persons involved in the same. In fact, nothing has emerged under the evidence of any of the said witnesses despite rigorous cross examination by Ld. Addl. PP for the State. Correspondingly, as noted hereinabove, whilst, PW-1 attributed role qua accused Irfan @ Gandhi, giving a complete exoneration to co-accused Faiz @ Monu, prosecution did not endeavour to bring any supporting witnesses/evidence, to corroborate the version put forth by PW-1. Needless to mention Digitally signed by ABHISHEK ABHISHEK GOYAL SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 49 of 51 GOYAL Date:
2025.11.29 16:53:42 +0530 that there are various lacunae/omission in the case of the prosecution, as noted herein, in particular, regarding the unexplained delay in registration of FIR, ambiguity in the medical records of the deceased and non-explanation/non-determination of the exact cause of demise of deceased Abdul Majid, ambiguity as to how the matter came to be reported to the concerned police officials, forenoted discrepancies in the depositions of PW-4, PW-5 and PW-6 vis-à-vis other material/witnesses brought forth, as well as other reasons noted herein, benefit of which, in the considered opinion of this Court, must enure in favour of the accused persons. Needless in respect of the foregoing to mention at this stage that it is trite law 10 that the prosecution has to prove the charge(s) beyond reasonable doubt against an accused and that an accused is presumed to be innocent, till it is established otherwise. It is equally a settled law11 that in case where two views are possible, the one in favour of the accused and the other adversely against it, the view favouring the accused must be accepted.
40. Accordingly, in light of the foregoing, accused persons, namely, Irfan @ Gandhi @ Dada and Faiz @ Monu are acquitted of the charges/allegations levelled against them for the offence(s) under Section(s) 304/34 IPC. Consequently, the accused persons, namely, Irfan @ Gandhi @ Dada and Faiz @ Monu are admitted to bail on the said accused persons, each, furnishing a personal bond in the sum of Rs. 25,000/- (Rupees Twenty Five Thousand only) along with one surety of the like amount (each), as per the provisions under Section 437A Cr.P.C./Section 481 BNSS. Further, as requested, the bail bond be 10 Meena v. State of Maharashtra, (2000) 5 SCC 21.
11Raghunath v. State of Haryana, (2003) 1 SCC 398, Dhan Kumar v. Municipal Corporation of Delhi, (1980) 1 SCC Digitally 605; and State of U.P. v. Nandu Vishwakarma, (2009) 14 SCC 501. signed by ABHISHEK ABHISHEK GOYAL SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 50 of 51 GOYAL Date:
2025.11.29 16:53:47 +0530 furnished by the accused persons within a period of one week from the date of this judgment
41. File of the present case be consigned to record room Digitally after due compliance. signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.11.29 16:53:52 +0530 Announced in the open Court (Abhishek Goyal) on 29.11.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi SC No. 02/2018 State v. Irfan @ Gandhi @ Dada & Anr Page 51 of 51