Delhi District Court
State vs Upender Etc on 28 May, 2025
IN THE COURT OF Ms. VANDANA JAIN
ADDITIONAL SESSIONS JUDGE-03 & SPECIAL JUDGE
(COMPANIES ACT) SOUTH WEST: DWARKA COURTS:
NEW DELHI
SC No. : 1049/2018
State Vs. : Upender & Anr.
FIR No. : 791/2018
PS : Uttam Nagar
U/s : 304/308/34 IPC
CNR No. : DLSW01-019855-2018
1. Date of commission of offence : 20.08.2018
2. Date of institution of the case : 12.11.2018
3. Date of committal to Sessions Court : 01.12.2018
4. Name of the complainant : Sh. Krishna
5. Name of accused, parentage &
address : (1) Upender
S/o Madan Mehto
R/o E-346, Shiv Vihar,
J. J. Colony, Uttam Nagar,
New Delhi.
(2) Sudhir
S/o Lalan Mehto
R/o E-345, Shiv Vihar,
J. J. Colony, Uttam Nagar,
New Delhi.
8. Plea of the accused : Pleaded not guilty
9. Date on which order was reserved : 20.05.2025
10. Final order : (a) Accused Upender is
convicted for offence u/s 304
Pt. 2 IPC and acquitted for
SC No. 1049/2018
State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 1 of 50
offence u/s 308/34 IPC and (b)
Accused Sudhir is acquitted for
offence u/s 304/308/34 IPC
11. Date of final order : 28.05.2025
JUDGMENT
1. The investigation was set into motion on receiving DD No.123A dated 20.08.2018 at about 10:15 pm regarding quarrel at E-383, J.J. Colony, Shiv Vihar, Delhi. The said DD was assigned to ASI Manoj, who went to the spot along with Const. Yashwant where they came to know that injured persons have already been shifted to DDU Hospital. ASI Manoj along with Const. Yashwant went to DDU Hospital. He obtained MLC of injured Krishna and Chander Pal and also came to know that they had already left the hospital. They again went to the spot wherein also no complainant was found. On 22.08.2018, ASI Manoj went to the house of Chander Pal wherein he recorded statement of Krishna and the statement of Krishna was recorded.
2. In his statement, Krishna stated that on 20.08.2018 at about 10:30 pm, accused Sudhir and CCL 'A' (both real brothers) were fighting in the street and were abusing each other under the influence of liquor. His father namely Chander Pal (since deceased) asked them not to create nuisance there on which CCL 'A' and accused Sudhir started beating his father Chander Pal. When he tried to intervene, they also gave beatings to him. In the meanwhile, CCL 'D' and accused Upender also came there. CCL 'D' inflicted injury on the back side of head with a danda upon Krishna and accused Upender SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 2 of 50picked up a stone (patthar ) and inflicted injury on frontal region of the head of his father Chander Pal. His sister-in-law made a call at 100 number. PCR came and shifted him and his father Chander Pal to the hospital. While coming back from the hospital, the condition of his father Chander Pal deteriorated and he was taken to Safdarjung Hospital.
3. On the basis of the statement of Krishna, FIR under Section 308/34 IPC was registered. The investigation of the case was carried out. Site-plan was prepared. CCL 'A' was produced before JJB-II and accused Sudhir, Upender and other accused, who was later on declared CCL 'D' were sent to judicial custody. Statements of witnesses were recorded during investigation.
4. The attempt was made to record statement of Chander Pal, however, he was found to be admitted in the hospital and was unfit for statement. On 08.09.2018, DD No. 23B was received at PS Uttam Nagar from Gandhi Nursing Home regarding the death of Chander Pal. His body was shifted to DDU Hospital for postmortem. After postmortem, exhibits i.e. clothes and blood in gauze piece were preserved. After collecting postmortem report, charge-sheet for the offence under Section 304/308/34 IPC was filed against accused Upender and Sudhir. PIR was filed against CCL 'A' and 'D' before JJB-II.
5. After compliance of Section 207/208 Cr.PC, the file was committed to Sessions Courts. Charge for the offence under Section 304/308/34 IPC against both accused persons was framed on SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 3 of 5024.04.2019 to which both accused persons pleaded not guilty and claimed trial.
6. Matter was listed for prosecution evidence. The prosecution cited 21 witnesses, however, in total 29 witnesses have been examined. During the trial, Ld. Addl.PP for the State had pointed out that deceased Chander Pal received medical treatment from date of incident till the date he passed away, however, the entire medical treatment papers were not made the part of the charge-sheet. Those medical documents were taken on record and the concerned doctors were called for their examination leading to increase in number of prosecution witnesses.
7. Joint statement of accused persons under Section 294 Cr.PC was also recorded on 02.08.2022 wherein they admitted the genuineness of documents i.e. MLC No. 13259/2018 dated 18.09.2018 of Krishna prepared at DDU Hospital, MLC No. 11984/2018 dated 21.08.2018 of Krishna prepared at DDU Hospital and MLC No. 11576/2018 dated 21.08.2018 of Chander Pal prepared at DDU Hospital as Ex.PX1 to Ex.PX3. It is pertinent to note that despite recording of statement of accused persons under Section 294 Cr.PC regarding their admission qua aforesaid MLC's, these were proved by calling the doctors / staff from the concerned hospital subsequently.
8. PE was thereafter closed vide order dated 05.05.2025. Statements of the accused persons were recorded under Section 313 Cr.PC wherein all incriminating evidence against them were put to SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 4 of 50them but accused persons denied all the allegations levelled against them and also submitted that they have been falsely implicated in the present case. They led defence evidence wherein they examined Sonu as DW-1.
9. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses and the defence witness which have come on record. The testimonies of the prosecution witnesses are detailed as under:-
10. PW-1 Sh. Krishna : He deposed that :
"I am the resident of above mentioned address. Presently, I am electrician by profession. Deceased Chander Pal was my father. We are two brothers and one sister namely Girja Shankar and Suman. The date of incident is 20.08.2018 and the time of incident was probably 10:00-10:30 pm. On that day, accused Sudhir and Amarjeet who are resident of our vicinity were under the influence of liquor and were quarreling with each other in front of our house in gali. Thereafter, my father Chander Pal went outside the house and asked them as to why they were quarreling and abusing each other. On that Sudhir and Amarjeet started abusing my father and also started quarreling with him. Thereafter, I also tried to intervene between them to protect my father but then Sudhir and Amarjeet also started abusing and quarreling with me. In the meantime, their associates namely Diwakar and Upender also came there and then they also joined them. Thereafter, Diwakar gave me a danda blow which landed on the back side of my head and Upender lifted one stone and threw the same towards m father which landed on his front side of head due to which my father fell o the ground and thereafter he became unconscious. Sudhir also suffer injury because of said quarrel. Thereafter, my mother called the police at number 100. PCR van came and then took us to DDU hospital where treatment was given to us. Thereafter, when SC No. 1049/2018 State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 5 of 50
we were coming back, my father's condition got worse and then we took him to Safdarjung hospital. Thereafter, after about 2 days we took him back to home. The police met me and recorded my statement, the same is Ex.PW1/1, bearing my signature at point A. Accused persons Sudhir and Amarjeet are brothers. Accused Upender and Diwakar are relatives of Sudhir and Amarjeet. Accused persons Sudhir and Upender are present in the court today (correctly identified).
However, after coming to home, the condition of my father was not improving and thereafter, after about 1-2 days we took him to Gandhi hospital where the further treatment to him was given for about 15-18 days. Thereafter, my father was got discharged from the hospital and we brought him to home but his condition was not stable and then we again took him to Gandhi hospital where he died. Thereafter, his body was shifted to DDU hospital by police. I also identified his dead body vide identification memo Ex.PW1/2, bearing my signature at point A. The police had also taken me to hospital where my blood sample was taken by the doctor on 18.09.2018."
He was duly cross examined by Ld. Counsel for both accused persons.
11. PW-2 Sh. Gurmeet Singh, Primary Teacher, SDMC Primary School proved the age of accused Sudhir and CCL 'A'.
12. PW-3 Smt. Kiran : She deposed that :
"I am educated upto only 8 class. On 20.08.2018 at about 10.30 pm when I was present at my residence i.e. situated at the first floor of my aforesaid premises, then I heard the noise of some quarrel, which was going on at outside of our residence and I saw from window of my residence that Sudhir and Amarjeer (our neighbours) were quarreling with each other in front of our house in a gali and during the same they were also uttering filthy languages (abusing) and at that time my father in-law Sh. Chander Pal went to them and asked Sudhir and Amarjeet as to why they were quarreling and abusing to each other. Thereupon Sudhir and Amarjeet asked to my father in law Chander Pal not to intervene by saying that "Budhe tu chup reh" and they had also started quarreling with my father in law. On seeing SC No. 1049/2018 State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 6 of 50
that my brother in law(Devar) namely Krishna and myself came down and when we tried to safe my father in law from Sudhir and Amarjeet but both the accused persons had taken my father in law towards Dad side, outside the gali near school by dragging him. In the meantime iwakar and Upender (associates of Sudhir and Amarjeet) also came there d joined them and they had also started grappling and quarreling with my her in law. During said incident accused Diwakar gave a danda blow on the back side of the head of my brother in law and accused Upender lifted one stone piece and caused head injuries to my father in law by hitting said piece of stone. Consequently my father in law became unconscious as he fell on the ground due to said injuries. Thereupon I immediately called to the Police on 100 number. PCR van staff came at the spot. On seeing the PCR police officials Diwakar and Upender had fled away from the spot and their associates Sudhir and Amarjeet were apprehended by Police at the spot. My injured brother in law Krishna and father in law Sh. Chander Pal were taken to DDU hospital by the police for their treatment.
The weapon of offence i.e. blood stained danda used by Diwakar for causing injuries to my brother in law Krishna was lifted from the spot by me and it was handed over to the police which was taken into police possession vide its seizure memo Ex. PW-3/A bearing my signatures at point A and before seizing it the sketch of the said danda was prepared by police in my presence and the same is Ex. PW-3/B bearing my signatures at point A. The place of incident was inspected and a unscaled site plan was prepared at my instance which is Ex. PW-3/C bearing my signatures at point A. I further state that the aforesaid injuries were caused by the aforesaid accused persons to my brother in law Krishna and father in law Sh. Chander Pal with intention to kill both of them. My father in law Chander Pal had expired in the hospital during his treatment on 08.09.2018. The accused Upender and Sudhir are present in court (correctly identified) and I can identify their associates Diwakar and Amarjeet if shown to me. I can also identify the aforesaid case property if shown to me."
She identified case property i.e. wooden danda Ex.P-1. She was duly cross examined by Ld. Counsel for both accused persons.
SC No. 1049/2018 FIR No. 791/2018, PS Uttam Nagar Page 7 of 5013. PW-4 Sh. Bikram Singh, Teacher in MCD Primary School proved the age of accused Upender.
14. PW-5 Ms. Nidhi Saxena, Principal in MCD Primary School proved the age of CCL 'D'.
15. PW-6 Smt. Phoolwati : She deposed that :
"On 20.08.2018 at about 10:00 - 10:30 PM, I was present at my house. I heard some noise. I came out of my house and saw Sudhir & Amarjeet (JCL) who were residing in my neighbourhood, fighting with each other. My husband tried to intervene in their fight, then, accused Sudhir present in the Court today (correctly identified) started abusing and fighting with my husband. I called my children namely Girja Shankar & Krishan. My both sons tried to make understand Upender, Diwakar, Sudhir & Amarjeet who were fighting with my husband. Accused Upender hit my husband with a stone. When my son Krishan tried to save my husband, accused Diwakar (JCL) hit my son Krishan by a Danda who sustained severe injuries on his head. Accused Upender is present in Court today (Correctly identified). My elder son went to call the police but in the meanwhile, my elder daughter-in-law called the police. Accused Diwakar & Amarjeet are not present in the Court today (Both are JCLs). PCR came at the spot and on seeing the police officials, accused persons fled away from the spot throwing the Danda at spot. PCR took my husband and son Krishan to DDU Hospital. The Danda by which my son was beaten was taken into police possession by police. I can identify the said Danda, if shown to me, which is already Ex.P1."
She was duly cross examined by Ld. Counsel for both accused persons.
16. PW-7 HC Krishan Kumar : He proved DD No. 123A and deposed that :
"On 20.08.2018, I was posted at PS Uttam Nagar as Head Constable and was on duty as Duty Officer from 04:00 PM SC No. 1049/2018 State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 8 of 50
to 12:00 Midnight. At about 10.55 PM, I received a PCR Call regarding quarrel at E-383, Shiv Vihar, JJ Colony, New Delhi. I recorded DD No. 123-A dated 20.08.2018 in this regard. I informed ASI Manoj regarding DD No. 123- A through telephone. Today, I have brought original DD Register. Copy of aforesaid DD No. 123-A Dated 20.08.2018 is already on record, which is now Ex.PW7/A (OSR) bearing my signature at point A."
17. PW-8 HC Surender Kumar : He deposed that :
"On 22.08.2018, while I was posted as HC at PS Uttam Nagar and was on duty as Duty Officer from 04:00 PM to 12:00 Midnight. On that day, at about 10.35 PM I received a Rukka from ASI Manoj, on the basis of which I got recorded FIR No. 791/2018 with the help of CCTNS. Copy of FIR is on record, same is now Ex.PW8/A bearing my signatures at point A. I put my endorsement on the Rukka, same is Ex.PW8/B bearing my signature at point A. During investigation, I issued a certificate u/s 65-B of I.E. Act, same is also on record and now Ex.PW8/C bearing my signature at point A. After registration of FIR, I handed over copy of FIR and original Rukka to ASI Manoj."
18. PW-9 HC Sombir : He deposed that :
"On 08.09.2018, I was posted at PS Uttam Nagar as DD Writer from 08:00 AM to 02:00 PM. On that day, at about 01:30 PM, I received information that the injured being brought dead at Gandhi Nursing Hospital. I reduced the information into DD No. 23B. Today I brought original DD register. Copy of DD No. 23B is already on record and same is now Ex.PW9/A bearing my signature at point A (OSR). The DD was handed over to SI Govind for initiating legal action."
He was duly cross examined by Ld. Counsel for both accused persons.
19. PW-10 ASI Bhim Singh : He deposed that :
"On 17.10.2018, I was posted at PS Uttam Nagar as MHC(M) CP. On that day, Ct. Vikrant gave me case SC No. 1049/2018 State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 9 of 50
property of present case. The case property was deposited in Malkhana and thereafter, sent to FSL through Ct. Vikrant vide RC No. 339/21/18. The said RC is now Ex.PW10/A. Today I have also brought original register no. 19. The copy of same is now Ex.PW10/B (OSR) bearing my signature at point A & B."
He was duly cross examined by Ld. Counsel for both accused persons.
20. PW-11 HC Vikrant : He deposed that :
"On 17.10.2018 I was posted at PS Uttma Nagar as Constable. On that day, HC Bhim, MHCM (Case property) handed over to me four pullandas, sample seals, FSL form and the road certificate and directed me to deposit the same to FSL Rohini. I went to FSL, Rohini and deposited the same at the said office. During the time the case property was in my possession, it was in my safe custody and it was not tampered at any point of time. I came back to the PS and handed over the reciept to HC Bhim. IO recorded my statement under Section 161 CrPC."
He was duly cross examined by Ld. Counsel for both accused persons.
21. PW-12 HC Yashwant : He deposed that :
"On the intervening night of 20/21.08.2018, I was posted at PS Uttam Nagar as Constable. On that day, I was on night emergency duty and my duty timings were from 08:00 am to 08:00 pm. On that day, IO received information from DDU Hospital with regard to injured being admitted in DDU Hospital after a quarrel. Thereafter I along with IO/ASI Manoj went to DDU Hospital (Emergency). No injured was found admitted at that time and the injured persons have already left the hospital. IO collected MLC of injured persons. Thereafter, we came back to PS. Thereafter we went to the address mentioned in the MLC of injured i.e. E Block, J.J. Colony, Shiv Vihar where we came to know that injured Chander Pal and Krishna were undergoing treatment in some other hospital. Thereafter, I came back to the PS. My statement under Section 161 Cr.PC was recorded by the IO."SC No. 1049/2018 FIR No. 791/2018, PS Uttam Nagar Page 10 of 50
He was duly cross examined by Ld. Counsel for both accused persons.
22. PW-13 HC Bijender : He deposed that :
"On 18.09.2018, I was posted at PS Uttam Nagar as Constable. On that day, I joined the investigation of the present case. I took Krishna S/o Chander Pal to DDU Hospital where his medical examination was conducted. ME was made by the concerned doctor. Two sealed pullandas along with sample seal were handed over by the concerned doctor to me. I came to the PS and handed over the same to the IO which was seized by the IO vide seizure memo Ex.PW13/A bearing my signature at point A. My statement under Section 161 Cr.PC was recorded by the IO."
He was duly cross examined by Ld. Counsel for both accused persons.
23. PW-14 Insp. Govind Singh : He deposed that :
"On 22.08.2018, I was posted at PS Uttam Nagar as SI. On that day, the investigation of the present case was marked to me by the SHO. ASI Manoj handed over to me the documents pertaining to the present case. I along with HC Dinesh went to the spot i.e. in front of H. No. E-384, Shiv Vihar, J.J. Colony, Uttam Nagar, Delhi. There we met Kiran and Phoolwati. I inquired from both of them about the injured and found out that the injured went to DDU Hospital. I recorded statements of both of them as they were eye-witnesses to the incident. Site-plan was prepared at the instance of Kiran, which is already Ex.PW3/C bearing my signature at point B. Kiran also showed me the house of CCL 'D'. I went to the said house where CCL 'D' was arrested vide arrest memo Mark X bearing my signature at point A. I conducted his personal search vide memo Mark X1 bearing my signature at point A and also recorded his disclosure statement. CCL 'D' took us to the house of Sudhir where he met at his house. Accused Sudhir was arrested vide arrest memo Ex.PW14/A bearing my signature at point A. Personal search of the accused was conducted vide memo Ex.PW14/B bearing my signature at point A. CCL 'A' i.e. brother of accused Sudhir was also apprehended in the SC No. 1049/2018 State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 11 of 50
presence of his mother namely Radha vide apprehension memo Mark Y bearing my signature at point A. Version of the CCL 'A' was recorded. Thereafter CCL 'A' was remanded to JJB.
Thereafter CCL 'D' took us to the house of accused Upender where he was present at his house. Accused Upender was arrested vide arrest memo Ex.PW14/C bearing my signature at point A. I conducted his personal search vide memo Ex.PW14/D bearing my signature at point A. Medical examination of all accused persons were got conducted. Accused persons were produced before the concerned MM and JJB.
Thereafter, on 24.08.2018, I went to Gandhi Nursing Home, Uttam Nagar to record statement of Chander Pal. The injured was unfit for statement. I again visited Gandhi Nursing Home for 10 days regularly after 24.08.2018 but the injured was still unfit to give his statement. On 08.09.2018, I received information from Gandhi Nursing Home that injured Chander Pal had expired. The body of deceased was shifted to DDU Hospital and was kept in mortuary.
On 09.09.2018, postmortem of deceased was got conducted. The samples were handed over to me by the concerned doctor which were seized vide seizure memo Ex.PW14/E bearing my signature at point A. The medical documents of the treatment of the deceased were handed over to me by the family members of the deceased. During the entire investigation, HC Dinesh was present with me.
Thereafter, section 304 IPC was added in the present case and investigation of the present case was handed over to Insp. Baljeet Singh."
He identified both the accused persons in the court. He was duly cross examined by Ld. Counsel for both accused persons.
24. PW-15 Ms. Poonam Sharma, Assistant Director (Biology), FSL : She deposed that :
"On 17.10.2018, my office received four sealed parcels of the present case, out of them one was the sealed envelope and three were sealed cloth parcels. I examined the said SC No. 1049/2018 State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 12 of 50
parcels and found out that blood was detected on Ex.1, Ex.2, Ex.3 and Ex.4. The DNA profile could not be generated from the source of Ex.1 i.e. wooden stick and blood gauze of the deceased due to degradation/inhibition. The DNA profile of the male origin was generated from the source of Ex.3 (gauze cloth piece of injured Krishna) and Ex.4 blood sample of injured Krishna. After examination, the remnants were sealed with the seal of P.Sh.FSL DELHI. I prepared FSL DNA report No.2018/B-9799 dated 07.01.2019. Same are Ex.PW15/A bearing my signatures at point A. The report of the Allelilc data is Ex.PW15/B bearing my signatures at point A."
She was duly cross examined by Ld. Counsel for both accused persons.
25. PW-16 SI Manoj Kumar : He deposed that :
"On the intervening night of 20/21.08.2018, I was posted at PS Uttam Nagar as ASI. On that day, my duty timings were from 08:00 pm to 08:00 am. I received DD No. 23A at about 10:55 pm with regard to quarrel at E-383, J. J. Colony, Shiv Vihar, Delhi. I reached along with Const. Yashwant at the spot where we came to know that injured persons have already been shifted to the hospital. Const. Yashwant stayed at the spot and I went to DDU Hospital. There I obtained MLC of injured Krishna and injured Chander Pal. The injured persons have already left the hospital. Thereafter, I again came back to the spot where Kiran W/o Girija Shankar handed over to me a blood stained danda which was used in cot (Charpai). I prepared the sketch of the said danda, same is already Ex.PW3/B bearing my signature at point B. The said danda was seized by me vide seizure memo already Ex.PW3/A bearing my signature at point B. None of the witnesses gave their statements on that day at the spot. Thereafter, I along with Const. Yashwant came back to the PS. I searched for the injured persons but they were not traceable.
On 22.08.2018, I recorded statement of Krishna and prepared the rukka. The said rukka is Ex.PW16/A bearing my signature at point A. I handed over the rukka to the DO and got the FIR registered. The investigation of the present SC No. 1049/2018 State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 13 of 50
case was further marked to SI Govind Singh. I can identify the danda, if shown to me. (Identity of danda is not disputed by Ld. Defence counsel.)"
He was duly cross examined by Ld. Counsel for both accused persons.
26. PW-17 Insp. Baljeet Singh : He deposed that :
"On 10.09.2018, I was posted at PS Uttam Nagar as Additional SHO. On that day, the investigation of the present case was marked to me for further investigation by the SHO. On 18.09.2018, I along with Const. Bijender went to DDU Hospital to get conducted the medical examination of injured Krishna at DDU Hospital for the purpose of collecting blood sample of the injured. The said sample was handed over to me by the doctor, same was seized by me vide seizure memo already Ex.PW13/A bearing my signature at point B. On 17.10.2018, the exhibits of the present case were sent to FSL through Const. Vikrant. Thereafter, I prepared the charge-sheet and filed the same before the concerned court.
Thereafter, I collected the FSL result and prepared the supplementary charge-sheet and filed the same before the concerned court. "
He was cross examined by Ld. Counsel for both accused persons.
27. PW-18 Sh. Bhunesh Kumar Sharma, Medical Record Technician, AIIMS : He deposed that :
"Today, I have brought the summoned record. It is transfer out form of patient Chander Pal. The patient was admitted on 21.08.2018 at about 5:40 pm and was examined by Dr. Reny Gilbert. The patient was then transferred to other hospital on the same date at 10:36 pm. As per the record, the patient was first taken to DDU Hospital vide MLC No. 11576. The attested transfer out form is Ex.PW18/A (colly-running into 4 pages) bearing the signatures of Sh. Radhey Shyam, Junior Medical Record Officer at point A and B. I can identify the signatures of Sh. Radhey Shyam as I have seen him writing and signing in due course of his duties. The original transfer out form is Ex.PW18/B SC No. 1049/2018 State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 14 of 50
(colly).
I have also brought the attested copy of date of joining and relieving register in which the name of Dr. Reny Gilbert is mentioned at serial No. 1911. The attested copy of said entry is Ex.PW18/C."
28. PW-19 Dr. Mukesh, Resident Medical Officer : He deposed that :
"On 21.08.2018 at about 2:00 am, patient Chander Pal came to our hospital in emergency. The patient was having complaint of scizure. The patient was having history of head injury, for which treatment had already been taken in DDU Hospital. He received sutures at left posterior part of head in DDU Hospital. After taking first aid from the DDU Hospital, the patient was going to his home where he suffered scizures. On this complaint, he came to emergency at our hospital.
The patient was given treatment for scizures by me and was referred to Neuro Surgery Department at Safdarjung Hospital at about 4:00 am on 21.08.2018. During this period, a referral sheet was prepared by me, same is Ex.PW19/A bearing my signature at point A."
He was cross examined by Ld. Counsel for both accused persons.
29. PW-20 Dr. Pawan Gandhi, Medical Superintendent/Co-owner, Gandhi Hospital : He deposed that :
"I am running Gandhi Hospital since year 1989. I can identify the handwriting and signature of Dr. Pankaj, who was working as Resident Doctor in my hospital. The referral sheet of patient Chander Pal is in the handwriting of Dr. Pankaj and bears my signature at point- A. The referral sheet is Ex.PW20/A. As per the record, the patient Chander Pal was admitted on 24.08.2018 and discharged on 07.09.2018 and was referred to other hospital. The patient was having alleged history of assault with head and chest injuries. The patient was sent for CT scan to Star Imaging & Path Lab., Tilak Nagar since my hospital was not having the facility of CT Scan. The nature of injuries were 'grievous' as per report of NCCT Head dated 24.08.2018.SC No. 1049/2018
State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 15 of 50
The patient was again brought by his relatives on 08.09.2018 in unconscious state as on examination, the patient was found to be clinically dead on arrival. The death summary of patient Chander Pal is Ex.PW20/B. Today I have also brought the complete treatment record of patient Chander Pal available in the record of Gandhi Hospital.
I can identify the handwriting of Dr. Pankaj Singh, Resident Medical Officer; Dr. Shalesh Jain, Neuro Surgeon; Dr. Vikram Kalra, Nephrologist; Dr. Pardeep Kumar Singh, MS Ortho; Dr. Rajeev Kumar Pandey, Resident Medical Officer; Dr. Chander Mani Punjabi, Chest Physician and Dr. Umesh, Nephrologist as all the said doctors have worked with me in the Gandhi Hospital and I have seen them writing and signing in due course of my duties.
The referral summary sheets Ex.PW20/A is in handwriting of Dr. Pankaj and signed by me at point A. The examination notes prepared by Dr. Shailesh Jain is Ex.PW20/B (OSR) bearing the signature and stamp of Dr. Shailesh Jain at point A. The examination notes of patient Chander Pal prepared by Dr. Vikram Kalra is Ex.PW20/C (OSR) bearing the signature and stamp of Dr. Vikram Kalra at point A. The examination notes of patient Chander Pal prepared by Dr. Pardeep Kumar Singh is Ex.PW20/D (OSR) bearing the signature and stamp of Dr. Pardeep Kumar Singh at point A. The examination notes of patient Chander Pal prepared by Dr. Rajeev Kumar Pandey is Ex.PW20/E (OSR) bearing the signature and stamp of Dr. Rajeev Kumar Pandey at point A. The examination notes of patient Chander Pal prepared by Dr. Umesh Gupta is Ex.PW20/F (OSR) bearing the signature and stamp of Dr. Umesh Gupta at point A. The examination notes of patient Chander Pal prepared by Dr. Chander Mani Punjabi is Ex.PW20/G (OSR) bearing the signature and stamp of Dr. Chander Mani Punjabi at point A."
He was cross examined by Ld. Counsel for both accused persons.
30. PW-21 Sh. Braham Prakash, Operation & Business Development Manager, Star Imaging & Path Lab : He deposed that :
SC No. 1049/2018State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 16 of 50
"I am working in Star Imaging & Path Lab. Ltd. since year 2018. I have been authorised by Dr. Sameer Bhati, Director, Star Imaging & Path Lab. Ltd. to appear and depose before this Court. My authority letter is Mark-A1. I have also brought the verified reports of patient Chander Pal of CT Scan Head duly verified from IT Records. I have seen Dr. Sameer Sood writing and signing during the course of my duties. Three of the said reports bear the signature of Dr. Sameer Sood at point-A. Same are Ex.PW21/A (Colly.). The other two reports are signed by Dr. Ritesh Singh. Same are also verified by me from the IT Records. The said report dated 04.09.2018 of CT Scan Head of patient Chander Pal is Ex.PW21/B (running into two pages).
The originals of the above said record are already placed in the judicial file."
31. PW-22 Sh. Arjun Oraon, Data Entry Operator, Department of Radiology and Trauma Centre, AIIMS : He deposed that :
"I am posted at AIIMS since year 2014. Today, I have been authorized by Dr. Shivanand Gamangati, Professor of Radiology, AIIMS to appear and depose before this court on behalf of Dr. Shreelekha as she had left the hospital and her whereabouts are not known to the hospital. The said authority letter is Ex.PW22/A. I had worked with Dr. Shreelekha in the due course of my duties. Today, I have also brought the attested copy of CT Head C Spine of patient Chander Pal dated 21.08.2018 conducted by Dr. Shreelekha along with certificate under Section 65B Evidence Act. The said report is Ex.PW22/B bearing digital signature of Dr. Shreelekha at point A. My certificate under Section 65B Evidence Act is Ex.PW22/C bearing my signature at point A."
32. PW-23 Sh. Deshraj, Medical Record Clerk, DDU Hospital :
He deposed that :
"I am posted at DDU Hospital since year 2001. I can identify handwriting and signature of Dr. Chetan, the then SR Neurology. I have been deputed by Assistant Director, Planning and MRD to depose on behalf of Dr. Chetan as he had left the hospital and his whereabouts are not known SC No. 1049/2018 State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 17 of 50
to the hospital. I had worked with him and seen him writing and signing in the due course of my duties. Discharge summary sheet dated 23.08.2018 of injured Chander Pal bears the signature of Dr. Chetan at point A, same are Ex.PW23/A (colly)."
33. PW-24 Dr. Navneet Kalra, Consultant Physician : He deposed that :
"In the year 2018, I was working as Consultant Physician in the Gandhi Hospital. Patient Chander Pal was referred to me by Dr. Pawan Gandhi to see medical elements and diabetes control. During the time while the patient was admitted, I examined him and observed that the patient was very critically ill. I also referred the patient to Neuro Surgeon. My examination notes are Ex.PW24/A (OSR) bearing my signature at point A."
He was cross examined by Ld. Counsel for both accused persons.
34. PW-25 Dr. Adarsh Patel, Consultant Neuro Surgeon : He deposed that :
"On 22.08.2018, I was posted at Safdarjung Hospital. On that day, I was working as Resident Doctor/ Training Doctor in Neurosurgery Department, Safdarjung Hospital. As per the records, patient Chander Pal was admitted to the hospital on 21.08.2018. The patient had sustained head injury with CT Scan of head suggestive of depressed fracture with bilateral SDH (Subdural Hematoma) with contusion (Traumatic Brain Hemorrhage). I examined him on the discharge. The patient was discharge on 22.08.2018. I prepared the discharge summary, same is Ex.PW25/A bearing my signature and stamp at point A."
He was cross examined by Ld. Counsel for both accused persons.
35. PW-25 Dr. Adarsh Patel, Consultant Neuro Surgeon : He deposed that :
SC No. 1049/2018State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 18 of 50
"On 22.08.2018, I was posted at Safdarjung Hospital. On that day, I was working as Resident Doctor/ Training Doctor in Neurosurgery Department, Safdarjung Hospital. As per the records, patient Chander Pal was admitted to the hospital on 21.08.2018. The patient had sustained head injury with CT Scan of head suggestive of depressed fracture with bilateral SDH (Subdural Hematoma) with contusion (Traumatic Brain Hemorrhage). I examined him on the discharge. The patient was discharge on 22.08.2018. I prepared the discharge summary, same is Ex.PW25/A bearing my signature and stamp at point A."
He was cross examined by Ld. Counsel for both accused persons.
36. PW-26 Sh. Subhash Gautam, Zonal Head, Sales and Operation, Star Imaging and Path Lab Ltd. : He deposed that :
"I am working in Star Imaging and Path Lab Ltd. since last 30 years. Today, I have been authorized by Dr. Sameer Bhati, Director, Star Imaging and Path Lab Ltd. to depose before this court. My authority letter in this regard is Ex.A-2. I can identify signatures of Dr. Ritesh Singh as I have seen him writing and signing in due course of my duties.
Today, I have brought the verified reports of patient Chander Pal i.e. CT Scan head dated 04.09.2018. Same is Ex.PW26/A (running into two pages) bearing the signature of Dr. Ritesh Singh at point A. The originals of the record are already available in the judicial file."
37. PW-27 Dr. Arnab Pramanik, Senior Medical Officer : He deposed that :
"On the intervening night of 20/21.08.2018, I was posted at DDU Hospital as Senior Resident. Patient Chander Pal came to the hospital on 21.08.2018 at 12:20 am. I examined him and observed that CLW (1.5 x 0.2 cm) over his forehead vide ME No. 11576/2018. The said ME is already Ex.PX3 bearing my signature and stamp at point A and B."
He was cross examined by Ld. Counsel for both accused persons.
SC No. 1049/2018 FIR No. 791/2018, PS Uttam Nagar Page 19 of 5038. PW-28 Dr. Puja Bhasin, Chief Medical Officer (NFSG), DDU Hospital : He deposed that :
"I am working at DDU Hospital since year 2003. In the year 2018, I was working at the said hospital as Casualty Medical Officer. I can identify the handwriting and signatures of Dr. A.K.Verma as I had seen him writing and signing in due course of my duties and I had worked with him. Dr. A. K. Verma, the then Junior Resident has left the hospital and his whereabouts are not known to the hospital. ME No. 11984/2018 of injured Krishan is in handwriting of Dr. A. K. Verma and bears his signature and stamp at point A. The said ME is already Ex.PX2. I can also identify the handwriting and signatures of Dr. Kraty Vijay as I had seen her writing and signing in due course of my duties and I had worked with her. Dr. Kraty Vijay, the then Junior Resident has left the hospital and her whereabouts are not known to the hospital. ME No. 13259/2018 of injured Krishan is in handwriting of Dr. Kraty Vijay and bears her signature and stamp at point A. The said ME is already Ex.PX1."
She was cross examined by Ld. Counsel for both accused persons.
39. PW-29 Dr. Jatin Bodwal, Specialist, Department of Forensic Medicine : He deposed that :
"On 09.09.2018, I was posted as Specialist, Department of Forensic Medicine at DDU Hospital, Delhi. On that day, I conducted postmortem of deceased Chander Pal. On external examination of the body of the deceased, I found partially healed wound (with reddish base) of size 3 cm x 1 cm which was present on the left side of forehead, 2 cm above eyebrow. The same is mentioned as injury No.1 at portion A to A1 in my postmortem report dated 09.09.2018.
I also carried out the internal examination of the head of the deceased, following findings were observed:
A- Scalp: Effusion of blood was present on the left frontal region.
B- Skull: Fracture was present of left side frontal bone. Effusion of blood was present at the fracture site.SC No. 1049/2018
State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 20 of 50
C- Brain, Meanings & Vessels: Subdural hemorrhage was present on left cerebral hemisphere. The internal examination of rest of the body was unremarkable. Same are mentioned in portion B to B1 in my postmortem report dated 09.09.2018. I prepared a detailed postmortem report No. 1578/2018 dated 09.09.2018. Same is Ex.PW29/A (running into 3 pages) bearing my signature at point C on each page.
After the conducting postmortem and preparing the report, clothes and blood in gauze piece sealed with seal of "PM DDUH" were preserved and the same were handed over to IO along with sample seal.
The cause of death is head injury via injury no.1, which was sufficient to cause death in ordinary course of nature. Injury no.1 was caused by blunt force trauma and ante mortem nature."
He was cross examined by Ld. Counsel for both accused persons.
40. The testimony of defence witness is detailed as under.
41. DW-1 Sh. Sonu : He deposed that :
"On 20.08.2018, at around 10:30 pm, CCL 'D' and 'A' were fighting with each other in front of house of Chander Pal. Chander Pal asked them not to fight in front of his house and told them to go from there. Both of them went outside the park situated near the house of Chander Pal. Chander Pal along with his family members went outside the park where CCL 'D' and CCL 'A' were present and started manhandling with them. I was present inside the park at that time. Accused Upender and Sudhir were also present inside the park. We all three tried to pacify Chander Pal, his family members, CCL 'D' and CCL 'A'. In the meanwhile, someone called at 100 numbers. PCR came and picked all of them.
On 22.08.2018, family members of Chander Pal including him went to the house of CCL 'A' and started beating him. CCL 'A' was alone in his house. In the said quarrel, Chander Pal fell down and sustained head injuries. Someone called at 100 number. Police came and all of them were taken to PS."SC No. 1049/2018 FIR No. 791/2018, PS Uttam Nagar Page 21 of 50
He was cross examined by Ld. Addl. PP for the State.
Arguments addressed by Ld. Addl. PP for the State
42. Sh. Vijender Singh Kharb, Ld. Addl. PP for the State has argued that PW-1 Krishna (complainant), PW-3 Smt. Kiran and PW-6 Smt. Phoolwati have duly supported the prosecution case by deposing that accused persons had caused injuries to deceased Chander Pal by giving him danda flow on his head due to which he fell on the road and sustained injuries. Ld. Addl. PP for the State has further argued that the injuries sustained by the injured on his head were opined to be 'grievous' and a clear cut case under Section 304/308/34 IPC is made out and therefore, the accused be convicted for the said offence.
Arguments addressed by Ld. Counsel for both accused persons
43. On the other hand, ld. Counsel for accused has argued that as per the prosecution case, the alleged incident occurred on 20.08.2018 whereas the statement of complainant Krishna was recorded on 22.08.2018 pursuant to which the FIR has been registered. Hence, there is delay in registration of FIR which has not been explained by the prosecution.
44. He has further argued that statement of Chander Pal was not recorded despite the fact that he sustained injuries on 20.08.2018 and passed away on 08.09.2018.
45. Ld. Counsel has further submitted that PW-27 Dr. Arnab SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 22 of 50Pramanik who examined deceased Chander Pal at first instance, deposed that nature of injuries sustained by patient Chander Pal was simple and he has only given sutures on his forehead at that time. Ld. Counsel has further argued that deceased Chander Pal did not pass away due to alleged injury caused by accused Upender and, therefore, the prosecution case does not stand proved.
46. Ld. counsel has further argued that there is contradiction in the testimony of PW-1 Krishna, PW-3 Smt. Kiran and PW-6 Smt. Phoolwati regarding the place of occurrence of the incident. Ld. Counsel has further argued that as per the testimony of PW-1 Krishna, the incident occurred in front of the house of the witness whereas as per the testimony of PW-Smt. Kiran, the incident occurred at some distance from the house. He has pointed out that as per the testimony of PW-6 Smt. Phoolwati, the incident occurred at some distance near the park which was about 20-30 meters away from the house of the witness. Ld. Counsel has argued that it is not clear where the incident took place and, therefore, accused is granted benefit of doubt. Ld. Counsel has submitted that the stone by which accused Upender had allegedly caused injuries to Chander Pal was not recovered by the police. He has further argued that it is not opined as to how deceased Chander Pal had sustained injuries on his forehead. He has further argued that prosecution has not been able to prove the case beyond reasonable doubt. Therefore, they are liable to be acquitted.
47. I have heard the arguments and have perused the record carefully.
SC No. 1049/2018 FIR No. 791/2018, PS Uttam Nagar Page 23 of 5048. The case of prosecution is based on ocular testimony. Prosecution has cited PW-1 Krishna, PW-3 Kiran and PW-6 Phoolwati as eye-witnesses to the incident. The law relating to ocular testimony has been discussed in Shahaja @ Shahajan Ismail Mohd. Shaikh vs. The State of Maharashtra, Criminal Appeal No. 739 of 2017 decided on 14.07.2022, wherein Hon'ble Supreme Court of India has held that :
"27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning SC No. 1049/2018 State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 24 of 50
his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to SC No. 1049/2018 State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 25 of 50
recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."
49. In view of the parameters on which the testimony of eye witnesses is to be tested, as laid down above. Let us assess the testimony of eye-witnesses cited by prosecution.
50. All these three alleged eye-witnesses are the members of family of deceased Chander Pal. PW-1 is the son, PW-3 Kiran is the daughter-in-law (not the wife of PW-1) and PW-6 is the wife of deceased. Except for these witnesses, no other independent witness has been cited by the prosecution. Undoubtedly, their testimonies comes under the category of interested witnesses.
51. The law relating to testimony of interested witness is quite clear. Hon'ble Supreme Court in Masalti vs. State of UP (AIR 1965 SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 26 of 50SC 202), Hon'ble Supreme Court observed that :
"14. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
52. The testimony of these witnesses is to be appreciated in view of aforesaid legal principles laid down in above quoted judgment.
53. PW-1 Krishna is also the injured. He had deposed that at about 10-10:30 am, accused Sudhir along with CCL 'A' (both real brothers) under the influence of liquor were quarreling and abusing each other in front of the house of witness. His father Chander Pal went outside the house and asked them as to why they were quarreling and abusing each other on which they started abusing his father and also started quarreling with him. When he tried to intervene to protect his father, accused Sudhir and CCL 'A' started abusing and quarreling with him. In the meanwhile, accused Upender and CCL 'D' came there and joined them. CCL 'D' gave danda blow on the head of PW-1 and accused Upender lifted one stone and threw the same towards his father which hit front side of the head of his father and he (Chander Pal) become unconscious.
54. The abovestated testimony of PW-1 reveals that CCL 'D' had given danda blow on his head and accused Upender threw a stone which hit the front side of head of his father Chander Pal due to which SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 27 of 50he became unconscious. He was subjected to cross-examination by counsels for accused Upender and Sudhir (rest two are CCLs). Both the counsels did not dispute the presence of PW-1 at the spot. They did not dispute the injury sustained by PW-1. Though the injury was inflicted by CCL 'D' who is not before this court, but the fact that PW-1 had sustained injury is proved by his ocular testimony as well as the medical evidence. PW-28 Dr. Puja Bhasin has proved the ME of Krishna wherein it was recorded that "CLW 2.5 cm x 0.5 cm over occipital area & CLW over (L) Zygomatic area 2.3 cm x 0.5 cm" and nature of injury was opined to be simple.
55. The injury sustained by PW-1 proves two facts. One, that a quarrel had taken place at the spot and secondly, PW-1 is an actual eye-witness to the incident. It is pertinent to note that the law confers a special status to the testimony of an injured eyewitness. The Hon'ble Apex Court in Abdul Sayeed v. State of M.P.: (2010) 10 SCC 259 observed as under:
"30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence of the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
56. Witness was cross examined by Ld. Counsel for accused Sudhir wherein witness admitted that when his father Chander Pal approached accused Sudhir and CCL 'A', he did not suffer any injury SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 28 of 50at that time. He further admitted that nobody had suffered injuries prior to arrival of accused Upender and CCL 'D' at the spot. From the examination-in-chief and cross examination of PW-1, it is found out that there are no allegations of assaulting either PW-1 or deceased Chander Pal by accused Sudhir in the statement of PW-1 Krishna.
57. During the cross-examination of PW-1 by Ld. Counsel for accused Upender, he was primarily put three suggestion -
(a) that Chander Pal sustained head injury due to quarrel between him and his son PW-1 on 20.08.2018 on issue of money.
(b) Accused Upender was not present at the spot.
(c) Accused Upender has been falsely implicated due to previous enmity of Chander Pal with him.
All these suggestions were categorically denied by PW-1.
58. The cross examination conducted by Ld. Counsel for accused Upender proves the admission of accused regarding occurrence of incident on 20.08.2018 and sustaining head injuries by Chander Pal. Accused did not produce any evidence to establish that Chander Pal and his son (PW-1) had a fight with each other. Further, no evidence was led by accused Upender either to prove his plea of alibi or his defence of having a previous enmity between him and deceased Chander Pal which lead to his false implication.
59. Accused Upender in his statement under Section 313 Cr.PC stated that "I have been falsely implicated by police at the instance of the complainant. There was a friendship between my friend Rakesh and PW-3 Kiran and both of them used to talk from my terrace. I SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 29 of 50asked them not to come to my terrace. The fact of the relationship of Rakesh and PW-3 Kiran came to the knowledge of family members of Kiran and also doubt about my involvement in the said relationship. Family members of Kiran was seeking an opportunity to take revenge from me. CCL 'D' and CCL 'A' were both quarreling on the date of incident and I came out and intervened to stop the fight but I was falsely implicated in the present case."
60. No such defence was taken during the cross examination prosecution witnesses. This is clearly an afterthought. It is interesting to note that accused persons have examined DW-1 Sonu in their defence, who has given a completely different version contrary to the stand of accused persons taken during the cross examination of prosecution witnesses and in their statements under Section 313 Cr.PC. DW-1 deposed that on 20.08.2018, Chander Pal had not sustained any head injury. He deposed that it was Chander Pal and his family members, who gave beatings to CCL 'D' and CCL 'A'. He further deposed that accused Upender and Sudhir were all present there and tried to pacify Chander Pal, his family members, CCL 'D' and CCL 'A'. He further deposed that on 22.08.2018, Chander Pal and his family members went to the house of CCL 'A' and a quarrel took place and where he fell down and sustained head injury. He was extensively cross examined by Ld. Addl.PP for the State.
61. Reading of his deposition proves two facts - (a) that a quarrel had taken place on 20.08.2018 outside the house of Chander Pal. (b) Accused Upender was present when quarrel took place which is contrary to the stand of Ld. Defence counsel for Upender taken during SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 30 of 50the cross examination of PW-1, wherein he had suggested to PW-1 that accused Upender was not present at the spot.
62. The incident of 22.08.2018 as narrated DW-1 is ex facie false in view of the medical treatment papers of Chander Pal which shows that he was in Safdarjung Hospital on that day. PW-22 Sh. Arjun Oraon, Data Entry Operator, AIIMS has proved the CT Head C Spine of patient Chander Pal as Ex.PW22/B conducted on 21.08.2018 which suggested "Depressed fracture of left temporal bone. B/I SDH as described. Hemorrhagic contusion in left frontal lobe. Fracture of left side of frontal bone with associated hemosinus." This proves that Chander Pal had sustained injuries prior to 22.08.2018, hence negating the version of DW-1. DW-1 is found to be highly unreliable. His testimony is completely discarded.
63. In these circumstances, the testimony of PW-1 is found to be cogent and reliable. From his testimony, it is established that accused Sudhir neither inflicted injuries to him (PW-1) nor to deceased Chander Pal. Accused Upender threw a stone on the front side of head of deceased Chander Pal pursuant to which he became unconscious. PW-1 sustained head injury inflicted by CCL 'D' whose trial is not before this court.
64. Section 134 of Indian Evidence Act provides that no particular number of witnesses are required for the proof of any fact. Though the testimony of PW-1 is sufficient alone, however, two more eye- witnesses have been cited by prosecution. Therefore, let us see whether their testimonies corroborates the testimony of PW-1.
SC No. 1049/2018 FIR No. 791/2018, PS Uttam Nagar Page 31 of 5065. PW-3 Smt. Kiran is the daughter-in-law of deceased Chander Pal. She deposed that when accused Sudhir and CCL 'A' started quarreling and abusing her father-in-law, she along with PW-1 Krishna came out. They tried to save Chander Pal from accused Sudhir and CCL 'A' but both the accused persons took Chander Pal towards the road side outside the gali near school by dragging him. In the meantime, CCL 'D' and accused Upender also came there and started quarreling with Chander Pal. CCL 'D' gave a danda blow on the head of her brother-in-law Krishna and accused Upender lifted one stone and caused head injuries to her father-in-law Chander Pal due to which he became unconscious and fell on the ground. She was cross examined by counsels for accused persons wherein she maintained her statement to the effect that accused Sudhir and CCL 'A' was quarreling with each other in front of her house and were abusing each other. No cross examination was conducted by the counsels for accused persons on the factual aspect wherein she described the entire incident and the manner in which it took place. She stated in her cross examination that though the police came at the spot after she called at 100 number, however, her statement was not recorded by the police.
66. Her testimony was recorded by the police on 23.08.2018. The said lapse cannot be attributed to the witness. It is seen that PW-3 Kiran had corroborated the testimony of PW-1 fully on some facts but has also deposed on some additional facts which are incriminating against accused Sudhir. The testimony of witnesses has been broadly put under three categories by Hon'ble Supreme Court of India in case titled as "Lallu Manjhi & Anr. vs. State of Jharkhand" Appeal (Crl.) SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 32 of 50No. 15 of 2022 wherein it was held that :
"The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. (Se Vadivelu Thevan etc. v. State of Madras, AIR 1957 SC 614)."
67. Applying the aforesaid legal principles, on scanning of the evidence of PW-3 individually, it is found that testimony of PW-3 falls under third category i.e. neither wholly reliable nor wholly unreliable.
68. PW-3 has fully corroborated the testimony of PW-1 by deposing that accused Upender lifted one stone and caused head injury to her father-in-law Chander Pal due to which he became unconscious and fell on the ground. Nothing in cross-examination could shake this part of her testimony. This part of her testimony which is corroborated by PW-1 also is fully reliable. But the testimony regard dragging of Chander Pal by accused Sudhir and CCL 'A' is uncorroborated. It is generally seen that witnesses tend to exaggerate the incident on account of fear of being disbelieved. PW-27 Dr. Arnab Pramanik who firstly examined Chander Pal on 20.08.2018 did not say about any injury sustained by him either on back side of his head or bruises on back side of his body which he might have sustained in the eventuality of him being dragged on the street. No such external SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 33 of 50injury was found mentioned even in the autopsy report of deceased Chander Pal. Since this part of her testimony is not corroborated either by the ocular testimony or the medical evidence regarding Chander Pal, it cannot be believed. Therefore, her testimony against accused Sudhir that he dragged Chander Pal is not reliable.
69. During her deposition, she had also deposed that she had handed over weapon of offence i.e. blood stained danda used by CCL 'D', who caused injury to PW-1 and she handed over the same to the police for which a sketch and seizure memo was also prepared. The perusal of the record shows that seizure memo of danda is dated 20.08.2018 which bears the signature of PW-3 Smt. Kiran. The sketch is also shown to be prepared on 20.08.2018, however, it is pertinent to mention here that by that time, no FIR was registered. FIR in the present case has been registered on 22.08.2018 on the statement of PW-1 Krishna and not of PW-3 Kiran. Since the sketch of the danda and its seizure memo was prepared on 20.08.2018, it is not explained by the prosecution as to why the statement of PW-3 Smt. Kiran was not on that day itself. It is worthwhile to point out that in the rukka prepared by ASI Manoj Kumar, he had stated that after receiving DD No. 123A, he along with Const. Yashwant went to the spot and found that injured persons were shifted to DDU Hospital by PCR van. Their MLC were collected. He went to PS but no injured was found. Thereafter, he went to the spot wherein no one was found. This description as mentioned in the rukka Ex.PW16/A is contrary to the statement of PW-3 Kiran and that of PW-16 ASI Manoj Kumar himself, who had stated that Kiran had handed over danda to ASI Manoj Kumar on 20.08.2018 itself for which a seizure memo and SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 34 of 50sketch was prepared there and then.
70. This part of the testimony regarding handing over of danda by PW-3 Kiran to PW-16 ASI Manoj Kumar is found unreliable, making the recovery of danda doubtful. In any case, danda was allegedly the weapon used by CCL 'D' for inflicting head injury to PW-1 Krishna. CCL 'D' is not before this court. Therefore, it is not of much significance.
71. Similarly, PW-6 Phoolwati, wife of deceased Chander Pal consistently deposed that accused Upender hit her husband with a stone and CCL 'D' inflicted danda blow on the head of his son Krishna (PW-1). She did not state anything against accused Sudhir regarding inflicting injuries by him either to Krishna (PW-1) or to her husband Chander Pal (since deceased). Her testimony has withstood the ordeal of cross-examination but nothing adverse could be elicited, making it to be trustworthy and reliable.
72. Ld. counsel for accused persons has argued that there is a discrepancy in the testimony of PW-1, PW-3 and PW-6 regarding the place of occurrence of incident and benefit has to go to the accused persons. The testimony of all the three witnesses is perused carefully. The testimony of all the three witnesses is consistent regarding the place where the quarrel took place i.e. outside the house of deceased Chander Pal. Everything happened in that locality itself, within few meters. The witnesses are not at variance in their testimony to such an extent that it was not possible for the incident to have not happened at the place as described by the witnesses. The natural witnesses were SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 35 of 50not expected to depose in a parrot like manner. They were not expected to count the steps or meters and tell to the court as to exactly at which point quarrel took place/ incident happened. It is but natural that people would move while quarreling with each other. Therefore, the incident admittedly having place in front of / near the house of Chander Pal does not make the statements of PW-1, PW-3 and PW-6 doubtful. There is no such discrepancy which is fatal to prosecution. Hence, this argument is not tenable.
73. Ld. Counsel for accused persons has further argued that there is delay in registration of FIR. Undoubtedly, there is delay of two days in registration of FIR. The lapse of ASI Manoj Kumar in not recording the statements of Kiran and Phoolwati on 20.08.2018 itself and registering the FIR has already been noted. However, at the same time, the entire facts have been discussed in preceding paras which show that right from the time when incident occurred, everyone was busy in getting Chander Pal treated. As many as 12 witnesses have deposed to prove the medical treatment taken by Chander Pal from the date of incident i.e. from 20.08.2018 till the date he passed away which duly explains the delay in registration of FIR. The same cannot be said to be fatal to the prosecution in any manner whatsoever.
74. Conclusion - From the testimonies of PW-1, PW-3 and PW-6, it stands established that accused Sudhir did not assault anyone while accused Upender threw a stone on the front side of head of Chander Pal due to which he became unconscious. The testimonies of these witnesses further fails to establish that accused Upender in furtherance of common intention with accused Sudhir had thrown a stone on the SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 36 of 50head of Chander Pal. Therefore, Section 34 IPC cannot be invoked to rope in accused Sudhir for the injuries inflicted by accused Upender to deceased Chander Pal.
75. Ld. counsel for accused persons has further argued that injury sustained by Chander Pal was opined to be simple and he has not died of the injury allegedly inflicted by accused Upender. In order to deal with this argument, the medical history of Chander Pal has to be discussed.
76. The deceased Chander Pal was firstly taken to DDU Hospital on the intervening night of 20/21.08.2018 at about 12:20 am wherein CLW (1.5 x 0.2 cm) over forehead was observed. Sutures were given by the doctor to stitch the wound and he was discharged. PW-27 Dr. Arnab Pramanik, Senior Medical Officer has deposed in this regard whose cross examination did not shake his testimony.
77. As per the testimony of PW-1 Krishna, Chander Pal got seizure while on way back home, he was shifted to Safdarjung Hospital. However, as per the medical record, before taking Chander Pal to Safdarjung Hospital, he was taken to two other hospitals, the description of which is as under.
78. He was then taken to Aashirwad Nursing Home Heart & Diabetes Center on 21.08.2018. He was examined vide prescription Ex.PW19/A wherein after evaluating the condition of Chander Pal, following observations were made:
"Patient responsive to questions, recognized son and says his own SC No. 1049/2018 State Vs. Upender & Anr.FIR No. 791/2018, PS Uttam Nagar Page 37 of 50
name. Patient needs immediate intervention of neurosurgery department as it is a case of severe traumatic brain injury. Patient referred to Higher Centre (Trauma Centre, Safdarjung) for further management.".
79. PW-19 Dr. Mukesh, Resident Medical Officer, Aashirwad Nursing Home Heart and Diabetes Centre has proved the referral sheet which was prepared by him as Ex.PW19/A.
80. Thereafter for his treatment, Chander Pal went to J.P. Narayan Apex Trauma Centre, AIIMS on 21.08.2018 itself wherein there was a complaint of seizure like episode and nasal bleed. After examining the patient, it was opined that no such surgical intervention was required from surgery side presently. However, he was referred to Neurosurgical opinion on the very same day. Neurosurgery Department examined him and his NCCT Head report and observed that left frontal haemorrhagic contusion and left parietal bone fracture was found. In NCCT Head report, it was reported that: "Depressed fracture of left temporal bone. Hemorrhagic contusion in left frontal lobe. Fracture of left side of frontal bone with associated hemosinus" . The NCCT Head report was proved by PW-22 Sh. Arjun Oraon, Data Entry Operator, Department of Radiology and Trauma Centre, AIIMS. It was advised that :
"Patient needs admission and neurosurgical intervention /ICU monitoring. Regret no bed vacant at present under neurosurgery. Refer to CMO for bed in any other government vehicle."
81. The said prescription of AIIMS was proved by PW-18 Sh.
SC No. 1049/2018 FIR No. 791/2018, PS Uttam Nagar Page 38 of 50Bhunesh Kumar Sharma, Medical Record Technician, AIIMS Trauma Centre.
82. Since no bed was available in Trauma Centre, AIIMS, he went for his treatment to Safdarjung Hospital wherein he was admitted on 21.08.2018 and discharged on 22.08.2018 vide discharge summary Ex.PW25/A. The said discharge summary was exhibited by PW-25 Dr. Adarsh Patel, Consultant Neuro Surgeon wherein it is mentioned -
"depressed fracture with bilateral SDH (Subdural Hematoma) with contusion in left frontal bone transovative management (Traumatic Brain Hemorrhage)."
83. He was thereafter admitted in DDU Hospital on 23.08.2018 and discharged on the same day wherein it was recorded "above mentioned patient came to DDU Hospital on 20.08.2018 A/H/O Physical assault as told by B/b. NCCT Head was done on AIIMS which showed B/C SDH along Right Front temporal parietal region. CT T-bone depressed T-bone. Patient was discharged from Safdarjung Hospital on 22.08.2018. GCS EuVsM6 today patient came back to DDU Hospital with history of Seizure like episode. Patient was managed conservatively and was advised for admission. Now patient wants to go discharge of patient request proguoris explained GCS EuVsM6." . The said treatment paper has been proved by PW-23 Sh. Deshraj, Medical Record Clerk, DDU Hospital, who has identified the signatures of Dr. Chetan at point A on the discharge summary Ex.PW23/A (colly).
84. Since he did not get any relief, Chander Pal was again SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 39 of 50admitted to Gandhi Hospital on 24.08.2018 and he remained there till 07.09.2018 (date of his discharge). In the said hospital, his CT Scan head was taken wherein it was reported "fracture seen in left parietal and temporal bones with haemorrhagic contusion of left frontal lobe with thin layer of acute subdural haematoma seen in right parietal region with minimal subarachnoid blood seen in left occipital with blood seen in posterior horns of both lateral ventricles." . On 25.08.2018, fresh CT Scan head was taken wherein it was reported "compared with old scan dated 24.08.2018 there is mild increase in subdural haematoma along right cerebral convexity and falx." . On 28.08.2018, fresh CT Scan head was taken wherein it was reported "compared with old scan dated 25.08.2018 there is no significant change." . On 04.09.2018, fresh CT Scan head was taken wherein it was reported "compared with previous scan dated 28.08.2018, temporal resolution of the right subdural hematoma, however, width of the hematoma remains same. Left subdural hygroma is a new finding - likely reactionary-post trauma." . The doctors from Gandhi Hospital have been examined as PW-20 i.e. Dr. Pawan Gandhi and PW-24 i.e. Dr. Navneet Kalra and the report of Star Imaging and Path Lab Ltd. have been proved by PW-21 Sh. Braham Prakash, Operation and Business Development Manager and PW-26 Sh. Subhash Gautam, Zonal Head, Sales and Operation.
85. On 08.09.2018, injured Chander Pal was again taken to Gandhi Hospital wherein he was declared brought dead.
86. The detailed description of the medical treatment record of Chander Pal shows that severity of injury which he had sustained. The SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 40 of 50observations/ reports of CT Scan head done several times during this period are self explanatory and suggestive of severeness of his injury. Therefore, it cannot be said that injury sustained by Chander Pal on his head due to the act of accused Upender was simple. Therefore, this argument is not tenable.
87. PW-29 Dr. Jatin Bodwal had conducted the postmortem of the body of deceased Chander Pal and opined that :
"On external examination of the body of the deceased, I found partially healed wound (with reddish base) of size 3 cm x 1 cm which was present on the left side of forehead, 2 cm above eyebrow. xxxxxxxxxxxx I also carried out the internal examination of the head of the deceased, following findings were observed:
A- Scalp: Effusion of blood was present on the left frontal region.
B- Skull: Fracture was present of left side frontal bone. Effusion of blood was present at the fracture site. C- Brain, Meanings & Vessels: Subdural hemorrhage was present on left cerebral hemisphere. The internal examination of rest of the body was unremarkable. xxxxxxxxxxxxxxx He opined that the cause of death is head injury, which was sufficient to cause death in ordinary course of nature. Injury no.1 was caused by blunt force trauma and ante mortem in nature. The postmortem report establishes that the death of Chander Pal was homicidal. He had passed away consequent to the head injury sustained by him by the stone thrown upon his head by accused Upender.
88. Ld. counsel for accused persons has also argued that there are serious lapses on the part of IO in conducting the investigation. Crime team was not called at the spot. No blood or earth control was lifted from the spot. Even the blood stained clothes of injured Krishna SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 41 of 50(PW-1) were not seized by IO. No CCTV footage was seized by the IO despite that fact that CCTV camera was installed at the spot. Undoubtedly, the lapses as pointed out by Ld. Defence counsel have been found to be committed by the investigation officer, however in this case, dehors the evidence on the abovementioned lapses/issues, the ocular testimony of witnesses coupled with medical evidence had clearly established the guilt of accused Upender beyond reasonable doubt. In these circumstances, any such lapses do not grant any benefit to the accused. Reliance in this regard is placed on "C. Muniappan vs. State of T.N." (2010) 9 SCC 567 wherein it was held as under:
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
89. Accused Upender has been charged under Section 304 IPC and not for murder punishable under Section 302 IPC. In order to determine whether accused Upender is liable to be convicted under SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 42 of 50Section 304 Pt. 1 IPC or under Section 304 Pt. 2 IPC, it is necessary to understand the distinction between culpable homicide not amounting to murder and culpable homicide amounting to murder as defined under Section 299 and 300 IPC respectively. The locus classicus on Section 299 and 300 IPC is State of Andhra Pradesh vs. Rayavarapu Punnayya & Anr. (1976) 4 Supreme Court Cases 382 wherein Hon'ble Supreme Court held 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.
13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
14. Clause (b) of Section 299 corresponds with clauses (2) SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 43 of 50and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.
Section 299 Section 300 A person commits culpable Subject to certain exceptions homicide if the act culpable homicide is murder by which the death is if the act by which the death is caused is done - is caused is done -
INTENTION
(a) With the intention of causing (1) With the intention
of causing death; or causing death; or
(b) With the intention of causing (2) With the intention of such bodily injury causing such bodily as is likely to cause death; injury as the offender cause death; or to knows to be likely to cause the death of the person to whom the harm is caused; or (3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death;
or
KNOWLEDGE
(c) With the knowledge that (4) With the knowledge
that the act is likely to cause that the act is so
death imminently dangerous
SC No. 1049/2018
State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 44 of 50
that it must in all
probability cause death
or such bodily injury as
is likely to cause death,
and without any excuse
for incurring the risk of
causing death or such
injury is mentioned
above.
15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.
16. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of "probable" as distinguished from a mere possibility. The words "bodily injury ... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.
17. For cases to fall within clause (3), it is not necessary SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 45 of 50that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala is an apt illustration of this point.
18. In Virsa Singh v. State of Punjab Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause (3), thus (at p. 1500): "The prosecution must prove the following facts before it can bring a case under Section 300, 'thirdly'. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
19. Thus according to the rule laid down in Virsa Singh case of even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be "murder". Illustration (c) appended to Section 300 clearly brings out this point.
20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general - as distinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
SC No. 1049/2018 FIR No. 791/2018, PS Uttam Nagar Page 46 of 5021. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code.
22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages."
90. Now let us consider the facts of this case in the light of legal principles laid down in aforesaid judgment.
91. In the present case, charge has been framed under Section 304 IPC, therefore, it is to be seen that whether the case in hand falls under Section 304 Pt. 1 IPC or Section 304 Pt. 2 IPC.
SC No. 1049/2018 FIR No. 791/2018, PS Uttam Nagar Page 47 of 5092. In Krishnamurthy vs. State Represented by the Inspector of Police Criminal Appeal No. 63 of 2011 , the prosecution case was that the deceased and the accused persons including the appellant were the neighbours in the village and a quarrel took place in respect of missing goat belonging to the deceased and during the said quarrel, appellant had assaulted the deceased on his head with wooden log. The injuries recorded were subdural hematoma present on the left frontal parietal region with left frontal intra cerebral hemorrhage. Doctors who conducted the postmortem opined the death due to shock and hemorrhage on account of head injuries and due to subdural hematoma on the left frontal intra cerebral hemorrhage. The doctor had stated before the court that such injuries were possible with the use of weapons like wooden log. In those circumstances, Hon'ble Supreme Court observed that :
"8. In view of the above, and having regard to the role played by the appellant, to the use of the weapons and to the injuries suffered by the deceased, we are of the considered opinion that it could not be said by any stretch of imagination that the appellant had an intention to cause such injuries to the deceased-Samidurai so as to cause his death. In our opinion, at the most it could be said that he had committed the alleged act with the knowledge that such act was likely to cause death. Therefore, his case would fall under Section 304 (II) of IPC and not under Section 302 IPC."
93. The testimony of prosecution witnesses as discussed in preceding paras clearly shows that there was no enmity between the accused Upender and deceased Chander Pal. In fact, a quarrel had taken place between CCL 'A' and his brother accused Sudhir and deceased had only intervened to ask them to go to some other place to SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 48 of 50fight. Injured Krishna was hit only by a stone by CCL 'D' and he had received simple injuries. The incident had taken place in a heat of passion on account of quarrel unfortunately culminating in the demise of deceased Chander Pal. There is no evidence to suggest any premeditation on the part of accused Upender to assault the deceased Chander Pal leave alone the evidence to show that he intended to kill him. As already said that there was no previous enmity between accused Upender and deceased Chander Pal, therefore, there is no evidence available on record to establish the intention of accused Upender to cause any bodily injury as is likely to cause death which is an essential ingredient in order to convict accused Upender under Section 304 Pt. 1 IPC.
94. On the other hand, there is sufficient evidence on record which establishes that accused Upender had caused death of deceased Chander Pal recklessly with the knowledge that the injury which he was inflicting by throwing a stone on the vital part i.e. frontal side of head of deceased Chander Pal was likely to be fatal and cause his death. Since the stone has not been recovered, nothing can be commented on the weapon of offence but the injuries sustained by deceased, certainly indicates the force by which it would have been thrown imputing knowledge upon accused Upender regarding the consequence which would ensue. Therefore, accused Upender is found guilty for committing the offence of culpable homicide not amounting to murder under Section 304 Pt. 2 IPC.
Conclusion
95. (a) Accused Upender is convicted for the offence punishable SC No. 1049/2018 State Vs. Upender & Anr.
FIR No. 791/2018, PS Uttam Nagar Page 49 of 50under Section 304 Pt. 2 IPC whereas he is acquitted for the charges under Section 308/34 IPC framed against him and (b) Accused Sudhir is acquitted for the charges under Section 304/308/34 IPC framed against him.
Digitally signed by VANDANA VANDANA JAIN
Announced in open court JAIN Date: 2025.05.28
28.05.2025 16:23:02 +0530
(Vandana Jain)
ASJ-03 & Special Judge (Companies Act)
Dwarka Courts (SW)/New Delhi
Note: This judgment contains fifty (50) pages and having my signature on each page.
Digitally signed VANDANA by VANDANA JAIN JAIN Date: 2025.05.28 16:23:08 +0530 (Vandana Jain) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi SC No. 1049/2018 State Vs. Upender & Anr. FIR No. 791/2018, PS Uttam Nagar Page 50 of 50