Delhi District Court
State vs Anil@Kokki on 28 April, 2026
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SC No. 27320/2016 CNR No. DLCT01-000421-2015
FIR No. 597/2014
U/Sec. 302/34 IPC
P.S. Paharganj
STATE VERSUS ANIL @ KOKKI AND ORS.
(i) SC No. of the case : 27320/2016
(ii) Date of commission of offence : 20.11.2014
(iii) Name, parentage and address : 1. Anil @ Kokki
of accused (Proceedings ABATED
vide order dated 13.08.2024)
S/o Sh. Sant Lal
R/o H.No. Kath Mandi
Girl School Ward No. 9
Charkhi Dadri Distt.
Bhiwani, Haryana.
2. Deepak Sheoran
S/o Sh. Jagdish
R/o Ward no. 16, Near
Wireless office Charkhi
Dadri Distt. Bhiwani
Haryana.
3. Rahul Dev @ Ghobi
S/o Sh. Shyam Lal
R/o DHVBN Power House
(147), Charkhi Dadri
Distt. Bhiwani
Haryana.
4. Rahul @ Nikku
SC No. 27320/2016
FIR No. 597/2014
State Vs. Anil @ Kokki & Ors. Page 1 of 61
S/o Sh. Ram Avtar
R/o Ward no. 15, Charkhi
Dadri Distt. Bhiwani
Haryana
(iv) Offence complained of : 302/34 IPC
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : Accused no. 2 Deepak
Sheoran and
Accused no. 4 Rahul @
Nikku are Convicted
u/Sec. 304 Part I/34 of IPC
and
Accused no. 3 Rahul Dev
@ Ghobi stands Acquitted
u/Sec. 304 Part I/34 IPC.
Date of Institution : 13.04.2015
Date of Judgment reserved on : 06.04.2026
Date of Judgment : 28.04.2026
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of SI Vinod Nain/PW-18/IO in the present case. Vide Ex.PW18/B DD no. 4A dated 20.11.2014 recorded at 1:50 AM that in the night of the said date the vehicle no. HR14J7850 (Ertiga car) had five men sitting. The said men were going from Ambedkar Bhawan towards Charkhi Dadri. Three to four person had attacked with blade the said 4-5 person in Ertiga car. The said 4- SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 2 of 61 5 person sitting in the vehicle had also injured one person among the 3-4 person. SI Vinod Nain had reached at the spot and by that time the PCR van has already taken the injured at Lady Hardinge hospital. As per Rukka Ex.PW18/A no eye witness was found by PW-18 SI Vinod Nain at the spot after he reached at the spot after 1:50 AM. Asal Tehrir is recorded as Ex.PW1/B. FIR in the matter was registered vide Ex.PW1/A and certificate in same respect is placed on record under Section 65B of Indian Evidence Act.
2. After registration of FIR the statement of witness was recorded by the IO namely ASI Jagdish Singh/PW-11 Incharge PCR van Oscar 48 is HC Chattar Singh from Oscar 70, Ct. Hoshiyar/PW-10, Ct. Kanwar Pal/PW-14. Ct. Kanwar Pal/PW-14 and Ct. Hoshiyar/PW-10 were on duty at picket Rani Jhansi road, Videocon Tower the road going towards Rani Jhansi Chowk. They were on duty on 19-20.11.2024 between 11 PM to 5 AM. They heard noise around 1:30 AM coming from the side of Ambedkar Bhawan bus stand. PW-10 and PW-14 had together reached at the spot at Ambedkar Bhawan bus stand where they found car no. HR14J7850 white colour Maruti Ertiga in standing position. On the public pedestrian four young accused person were beating one young boy. Two of the boys/accused namely accused no. 4 Rahul S/o Ram Avtar and accused no. 1 Anil had brick piece in their hands and two other boys/accused namely Deepak Sheoran and accused Rahul Dev were beating the victim with kicks and punches. They were shouting that today they will kill him so that he will not be in a position to fight with any one. PW-10 and PW-14 had overpowered the four boys. All the accused were resident of Charkhi Dadri, Haryana. The victim was injured boy Vijay Kumar who had suffered SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 3 of 61 multiple head injuries. Victim was taken in PCR vehicle by Ct. Chander Prakash to hospital. Accused no. 1 Anil has suffered injury on the bigger finger of his right hand and accused no. 4 Rahul S/o Ram Avtar has suffered injury on his right knee. First the FIR was registered under Section 308 IPC. Blood, slipper of make Sisco, seven pieces of brick some of which had blood on them were seized from the spot alongwith Maruti Ertiga vehicle. PW-10 and PW-14 have claimed themselves as eye witness having seen the accused person.
3. The Micromax phone of black colour, three keys in key ring, viscera of deceased Vijay Kumar, his clothes and blood gauze were seized. Accused person were apprehended. After investigation 16 injuries were reported over the head of the deceased with respective internal injuries. FSL opinion was also obtained.
4. After investigation chargesheet was filed. The accused person were summoned all of whom were charged under Section 302/34 IPC to which all the accused pleaded not guilty. The prosecution had led PW-1 to PW-22 the total number of prosecution witness against all the accused person. Statement of accused no. 2 Deepak and accused no. 3 Rahul Dev was recorded on 07.11.2024 and SA of accused no. 4 Rahul @ Nikku was recorded under Section 313 Cr. PC on 08.11.2024 in which accused no. 3 had preferred to lead DE and remaining accused no. 2 and 4 did not prefer to lead evidence in defence. The accused no. 2 had brought evidence in defence. His defence evidence was opened under Section 311 Cr. PC vide order dated 08.04.2025 and DW-1 Rakesh Kumar was examined. Vide separate statement of accused no. 2 DE stands closed on 28.05.2025. Vide SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 4 of 61 order dated 06.08.2025 application of accused no. 2 to recall PW-19 ACP Sukhdev Meena was allowed. Thereafter SA of accused no. 2 to 4 was recorded on 17.10.2025. Thereafter all the accused did not prefer to lead evidence in defence.
5. The case against accused no. 1 Anil @ Kokki stood "ABATED" vide order dated 13.08.2024 who had expired on 26.04.2024.
6. Final arguments are heard from both the parties and record perused.
6.1 Ld. Counsel for accused has relied on citation titled Hate Singh Bhagat Singh Vs. State of Madhya Bharat AIR 1953 SC 468 that accused has only to raise doubt on the preponderance of probability.
6.2 Accused has further relied on citation titled Reena Hazarika Vs. State of Assam 2018 (4) LRC 346 at para no. 17 wherein it is held that unlike prosecution the accused is not required to establish the defence beyond all reasonable doubt. There is no two opinion to the law laid down in the above citation.
7. The Hon'ble Madhya Pradesh High Court in case titled Suresh Ahirwar vs State of M.P. on 22 June, 2022 in CRIMINAL APPEAL NO. 51 of 2012 (DB) = 2022 SCC Online MP 1419 (underlining and formatting is as per the present Court) has laid down the Law under Section 302 IPC as under:
(9) It would be appropriate to throw light on relevant provisions of Sections 299 and 300 of Indian Penal Code.The Law Commission of United Kingdom in its 11th Report proposed the following test :
"The standard test of 'knowledge' is, Did the person whose conduct SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 5 of 61 is in issue, either knows of the relevant circumstances or has no substantial doubt of their existence?"
[See Text Book of Criminal Law by Glanville Wiliams (p.125)] "Therefore, having regard to the meaning assigned in criminal law the word "knowledge" occurring in clause Secondly of Section 300 IPC imports some kind of certainty and not merely a probability. Consequently, it cannot be held that the appellant caused the injury with the intention of causing such bodily injury as the appellant knew to be likely to cause the death of Shivprasad. So, clause Secondly of Section 300 IPC will also not apply."
The enquiry is then limited to the question whether the offence is covered by clause Thirdly of Section 300 IPC. This clause, namely, clause Thirdly of Section 300 IPC reads as under:-
''Culpable homicide is murder, if the act by which the death is caused is done 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."
The argument that the accused had no intention to cause death is wholly fallacious for judging the scope of clause Thirdly of Section 300 IPC as the words "intention of causing death" occur in clause Firstly and not in clause Thirdly. An offence would still fall within clause Thirdly even though the offender did not intend to cause death so long as the death ensues from the intentional bodily injury and the injuries are sufficient to cause death of the deceased in the ordinary course of nature. This is also borne out from illustration (c) to Section 300 IPC which is being reproduced below:-
"(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death."
Therefore, the contentions advanced in the present case and which are frequently advanced that the accused had no intention of causing death of deceased is wholly irrelevant for deciding whether the case falls in clause Thirdly of Section 300 IPC. (10) The scope and ambit of clause Thirdly of Section 300 IPC was considered by the Supreme Court in the decision in Virsa Singh Vs. State of Punjab, AIR 1958 SC 465 and the principle enunciated therein explains the legal position succinctly. The accused Virsa Singh was alleged to have given a single spear blow and the injury sustained by the deceased was "a punctured wound 2"x ="
transverse in direction on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal. Three SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 6 of 61 coils of intestines were coming out of the wound." After analysis of the clause Thirdly, it was held: -
"The prosecution must prove the following facts before it can bring a case under S. 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. Thirdly, it must be proved that there was an intention to inflict that particular bodily 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, is 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. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout), the offence is murder under S. 300 "Thirdly". It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death."
(11) In the case of Arun Nivalaji More vs. State of Maharashtra (Case No. Appeal (Cri.) 1078-1079 of 2005), it has been observed as under :-
"11. First it has to be seen whether the offence falls within the ambit of Section 299 IPC. If the offence falls under Section 299 IPC, a further enquiry has to be made whether it falls in any of the clauses, namely, clauses 'Firstly' to 'Fourthly' of Section 300 IPC. If the offence falls in any one of these clauses, it will be murder as defined in Section 300IPC, which will be punishable under Section 302 IPC. The offence may fall in any one of the four clauses of Section 300 IPC yet if it is covered by any one of the five exceptions mentioned therein, the culpable homicide committed by the offender would not be murder and the offender would not be liable for conviction under Section 302 IPC. A plain reading of Section 299 IPC will show that it contains three clauses, in two clauses it is the intention of the offender which is relevant and is the dominant factor and in the third clause the knowledge of the SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 7 of 61 offender which is relevant and is the dominant factor. Analyzing Section 299 as aforesaid, it becomes clear that a person commits culpable homicide if the act by which the death is caused is done
(i) with the intention of causing death; or
(ii) with the intention of causing such bodily injury as is likely to cause death; or
(iii) with the knowledge that the act is likely to cause death."
If the offence is such which is covered by any one of the clauses enumerated above, but does not fall within the ambit of clauses Firstly to Fourthly of Section 300 IPC, it will not be murder and the offender would not be liable to be convicted under Section 302 IPC. In such a case if the offence is such which is covered by clauses (i) or (ii) mentioned above, the offender would be liable to be convicted under Section 304 Part I IPC as it uses the expression "if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death" where intention is the dominant factor. However, if the offence is such which is covered by clause (iii) mentioned above, the offender would be liable to be convicted under Section 304 Part II IPC because of the use of the expression "if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death" where knowledge is the dominant factor.
12. What is required to be considered here is whether the offence committed by the appellant falls within any of the clauses of Section 300 IPC.
13. Having regard to the facts of the case it can legitimately be urged that clauses Firstly and Fourthly of Section 300 IPC were not attracted. The expression "the offender knows to be likely to cause death" occurring in clause Secondly of Section 300 IPC lays emphasis on knowledge. The dictionary meaning of the word 'knowledge' is the fact or condition of being cognizant, conscious or aware of something; to be assured or being acquainted with. In the context of criminal law the meaning of the word in Black's Law Dictionary is as under: -
"An awareness or understanding of a fact or circumstances; a state of mind in which a person has no substantial doubt about the existence of a fact. It is necessary ... to distinguish between producing a result intentionally and producing it knowingly. Intention and knowledge commonly go together, for he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends them. But there SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 8 of 61 may be intention without knowledge, the consequence being desired but not foreknown as certain or even probable. Conversely, there may be knowledge without intention, the consequence being foreknown as the inevitable concomitant of that which is desired, but being itself an object of repugnance rather than desire, and therefore not intended."
In Blackstone's Criminal Practice the import of the word 'knowledge' has been described as under: -
'Knowledge' can be seen in many ways as playing the same role in relation to circumstances as intention plays in relation to consequences. One knows something if one is absolutely sure that it is so although, unlike intention, it is of no relevance whether one wants or desires the thing to be so. Since it is difficult ever to be absolutely certain of anything, it has to be accepted that a person who feels 'virtually certain' about something can equally be regarded as knowing it."
(12) Section 299 of Indian Penal Code runs as under :-
"299. Culpable homicide.--
Wheoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
(13) Section 299 of IPC says, whoever causes death by doing an act with the bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Culpable homicide is the first kind of unlawful homicide. It is the causing of death by doing :
(i) an act with the intention of causing death;
(ii) an act with the intention of causing such bodily injury as is likely to cause death; or
(iii) an act with the knowledge that it is was likely to cause death.
Without one of these elements, an act, though it may be by its nature criminal and may occasion death, will not amount to the offence of culpable homicide. 'Intent and knowledge' as the ingredients of Section 299 postulate, the existence of a positive mental attitude and the mental condition is the special mens rea necessary for the offence.The knowledge of third condition contemplates knowledge of the likelihood of the death of the person. Culpable homicide is of two kinds : one, culpable homicide amounting to murder, and another, culpable homicide not amounting to murder. In the scheme of the Indian Penal Code, SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 9 of 61 culpable homicide is genus and murder is species. All murders are culpable homicide, but not vice versa. Generally speaking, culpable homicide sans the special characteristics of murder is culpable homicide not amounting to murder. In this section, both the expressions 'intent' and 'knowledge' postulate the existence of a positive mental attitude which is of different degrees. (14) Section 300 of Indian Penal Code runs as under :-
"300. Murder.-- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly.-- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly.-- If it is done 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-- Fourthly.-- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
(15) ''Culpable Homicide'' is the first kind of unlawful homicide. It is the causing of death by doing ;
(i) an act with the intention to cause death;
(ii) an act with the intention of causing such bodily injury as is likely to cause death; or,
(iii) an act with the knowledge that it was likely to cause death. (16) Indian Penal Code recognizes two kinds of homicide :
(1) Culpable homicide, dealt with between Sections 299 and 304 of IPC (2) Not-culpable homicide, dealt with by Section 304-A of IPC. There are two kinds of culpable homicide;
(i) Culpable homicide amounting to murder (Section 300 read with Section 302 of IPC), and
(ii) Culpable homicide not amounting to murder (Section 304 of IPC).
(17) A bare perusal of the Section makes it crystal clear that the first and the second clauses of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 10 of 61 and not the intention. Both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e., mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed.
(18) There are three species of mens rea in culpable homicide (1) An intention to cause death;
(2) An intention to cause a dangerous injury;
(3) Knowledge that death is likely to happen.
(19) The fact that the death of a human being is caused is not enough unless one of the mental state mentioned in ingredient of the Section is present. An act is said to cause death results either from the act directly or results from some consequences necessarily or naturally flowing from such act and reasonably contemplated as its result. Nature of offence does not only depend upon the location of injury by the accused, this intention is to be gathered from all facts and circumstances of the case. If injury is on the vital part, i.e., chest or head, according to medical evidence this injury proved fatal. It is relevant to mention here that intention is question of fact which is to be gathered from the act of the party.
Along with the aforesaid, ingredient of Section 300 of IPC are also required to be fulfilled for commission of offence of murder. (20) In the scheme of Indian Penal Code, "Culpable homicide" is genus and "murder" is its specie. All "Murder" is "culpable homicide" but not vice versa. Speaking generally 'culpable homicide sans special characteristics of murder' if culpable homicide is not amounting to murder.
(21) In the case of Anda vs. State of Rajasthan reported in 1966 CrLJ 171, while considering "third" clause of Section 300 of IPC, it has been observed as under:-
"It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on sufficiency of injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and causing of such injury was intended, the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature."SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 11 of 61
(22) In the case of Mahesh Balmiki vs. State of M.P. reported in (2000) 1 SCC 319, while deciding whether a single blow with a knife on the chest of the deceased would attract Section 302 of IPC, it has been held thus :-
"There is no principle that in all cases of single blow Section 302 I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death."
(23) In the case of Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat (2003) 9 SCC 322, it has been observed as under :-
"The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 12 of 61 both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused
(a) without premeditation,
(b) in a sudden fight;
(c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and
(d) the fight must have been with the person killed.
To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.'' (24) In the case of Pulicherla Nagaraju @ Nagaraja vs. State of AP (2006) 11 SCC 444, while deciding whether a case falls under Section 302 or 304 Part-I or 304 Part-II, IPC, it was held thus :-
"Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 13 of 61 intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances :
(i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was any pre- meditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger;
(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows.
The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."
(25) In the case of Sangapagu Anjaiah v. State of A.P. (2010) 9 SCC 799, Hon'ble Apex Court while deciding the question whether a blow on the skull of the deceased with a crowbar would attract Section 302 IPC, held thus:-
"16. In our opinion, as nobody can enter into the mind of the accused, his intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused. Here, the appellant had chosen a crowbar as the weapon of offence. He has further chosen a vital part of the body i.e. the head for causing the injury which had caused multiple fractures of skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 14 of 61 to one and the only conclusion that the appellant intended to cause death of the deceased."
(26) In the case of State of Rajasthan v. Kanhaiyalal reported in (2019) 5 SCC 639, this it has been held as follows:-
"7.3 In Arun Raj [Arun Raj v. Union of India, (2010) 6 SCC 457 :
(2010) 3 SCC (Cri) 155] this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of the deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.
7.4 In Ashokkumar Magabhai Vankar [Ashokkumar Magabhai Vankar v. State of Gujarat, (2011) 10 SCC 604 : (2012) 1 SCC (Cri) 397] , the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also knowledge of the accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part of the body, with such a weapon, would cause death.
7.5 A similar view is taken by this Court in the recent decision in Leela Ram (supra) and after considering catena of decisions of this Court on the issue on hand i.e. in case of a single blow, whether case falls under Section 302 or Section 304 Part I or Section 304 Part II, this Court reversed the judgment and convicted the accused for the offence under Section 302 IPC. In the same decision, this Court also considered Exception 4 of Section 300 IPC and observed in para 21 as under: (SCC para 21) "21. Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are:
(i) that the act was committed without premeditation;
(ii) that there was a sudden fight;
(iii) the act must be in the heat of passion upon a sudden quarrel;
and SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 15 of 61
(iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner."
(27) In the case of Bavisetti Kameswara Rao v. State of A.P. reported in (2008) 15 SCC 725, it is observed in paragraphs 13 and 14 as under:-
"13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be very many, they being (i) whether the act was premeditated; (ii) the nature of weapon used; (iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screwdriver, the learned counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the accused in his business, it could not be as if its user would be innocuous.
14. In State of Karnataka Vedanayagam [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] this Court considered the usual argument of a single injury not being sufficient to invite a conviction under Section 302 IPC. In that case the injury was caused by a knife. The medical evidence supported the version of the prosecution that the injury was sufficient, in the ordinary course of nature to cause death. The High Court had convicted the accused for the offence under Section 304 Part II IPC relying on the fact that there is only a single injury. However, after a detailed discussion regarding the nature of injury, the part of the body chosen by the accused to inflict the same and other attendant circumstances and after discussing clause Thirdly of Section 300 IPC and further relying on the decision in Virsa Singh vs. State of Punjab [AIR 1958 SC 465] , the Court set aside the acquittal under Section 302 IPC and convicted the accused for that offence. The Court (in Vedanayagam case [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] , SCC p. 330, para
4) relied on the observation by Bose, J. in Virsa Singh case [AIR 1958 SC 465] to suggest that: (Virsa Singh case [AIR 1958 SC 465], AIR p. 468, para 16) "16. With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 16 of 61 the evidence about them may sometimes overlap."
The further observation in the above case were: (Virsa Singh case [AIR 1958 SC 465] , AIR p. 468, paras 16 & 17) "16. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there.
The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question....
17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact."
A BODILY INJURY IS PRESENT ON THE DECEASED VIJAY KUMAR
8. PW-3 Ct. Robin has deposed that on 20.11.2014 he was working as photographer in Crime Team, Central. He along with Incharge of SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 17 of 61 Crime Team SI Pankaj/PW-12 went to the spot. He had taken 08 photographs of the spot and the developed photographs Ex.PW3/A1 to Ex.PW3/A8 which were handed over by him to the IO. The corresponding negatives of the photographs are Ex.PW3/B1 to Ex.PW3/B8. The message was received at 2 AM. When PW-3 had reached at the spot at 2:15 AM then at that time IO alongwith one Constable were present. The photographs are seen on record. In Ex.PW3/A2 brick pieces are lying on the road. In Ex.PW3/A3 a slipper along with brick pieces and some spot on the road are appearing to be red in colour. In Ex.PW3/A6, Ex.PW3/A7 and Ex.PW3/A8 much blood is seen to be lying on the floor. However where the blood is lying is not exactly on the road but it is on the side of the road which is appearing to be pedestrian walking space. Hence this is the space where vehicle may not be moving. PW-12 SI Pankaj the Incharge Mobile Crime Team has deposed that when he had reached at the spot then near Ambedkar bus terminal some blood was found scattered on the Patri and some broken bricks were also lying there. His report is Ex.PW12/A.
9. PW-5 Ashok Kumar Tanwar doing hotel business has deposed that the deceased Pappu/Vijay Kumar was carrying business of mobile repairing and the father of the deceased was his tenant. He had identified the dead body of Pappu/Vijay whom he knew since childhood. PW-7 Ms. Kanchan mother of the deceased had identified his dead body has deposed that the deceased Vijay was doing business of mobile repairing at the shop of his maternal uncle.
10. PW-9 HC Chander Parkash has deposed that in the intervening SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 18 of 61 night of 19/20.11.2014 he was posted at PCR Oscar 70 as Incharge. At about 1:40 AM the information was received from control room to reach PCR Oscar 48 as some injured was there. At the spot near Ambedkar Bhawan at bus stand, Rani Jhansi road SI Jagdish/PW-11 and two official of local police met him there. 3-4 boys were there. Two boys were injured. One boy aged about 19 years was bleeding from his head who was in unconscious condition. Hence PW-9 has deposed that the deceased Vijay Kumar aged about 19 years was lying in unconscious condition. PW-9 took the deceased boy in PCR to Lady Hardinge hospital on the direction of PW-11/SI Jagdish. It is deposed in cross- examination that he received information at 1:46 AM and he reached at the spot at 1:48 AM. It is admitted as correct that he had collected message at 1:50 AM that one person is in unconscious condition who was being taken to the hospital. Hence he is contradicting his time of reaching at the spot. PW-9/HC Chander Prakash has admitted the deceased Vijay Kumar at the hospital. He did not mention this fact in call book that two Constables of PS Paharganj present at the spot. HC Prem Prakash was driving the PCR van. Ct. Prashant was also in the PCR van. It is deposed by him that the stretcher was stained with blood. He stayed at hospital for about 20 minutes after admitting the deceased Vijay Kumar at the hospital.
11. PW-13 Ct. Shree Krishna has deposed that SI Vinod has prepared the site plan after registration of FIR. Rukka along with FIR brought by PW-3. IO had lifted 6-7 pieces of bricks, both the slippers, earth control, blood stained etc. which were sealed with the seal of VS. The seizure memo are Ex.PW13/A to Ex.PW13/C and the Ertiga car was seized vide SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 19 of 61 memo Ex.PW13/D. The injured died during treatment in the hospital. The doctor had handed over the mobile phone of the deceased and two keys of the Hero to the IO which were seized vide memo Ex.PW13/E. Doctor had handed over blood gauze, clothes of deceased, viscera box to the IO which were seized vide memo Ex.PW13/F. The blood gauze piece is proved as Ex.P-9 and Ex.P-10. The soil lifted from the spot is proved as Ex.P-11. The slippers are proved as Ex.P-12. The pieces of bricks are proved as Ex.P-13. It is deposed by PW-13 that he reached at the spot at about 2 AM and nobody was present at the spot. SI Vinod has left for Lady Hardinge hospital from the spot at 3:15 AM and by that time no public witness met with SI Vinod. Again said Ct. Kanwar Pal/PW-14 had come there.
12. PW-14 Ct. Kanwar Pal has deposed in his cross-examination dated 04.07.2017 that the PCR van who took the injured to the hospital had remained at the spot for about 5-7 minutes. The other PCR had left in next five minutes on leaving of first PCR and IO had not reached by that time.
13. PW-16 Ct. Rakesh had taken 15 sealed parcel on 08.01.2015 duly sealed with the seal of LHMC, VS, SD, FMT etc. after collecting them from MHC(M) HC Ashok Kumar and deposited them at FSL, Rohini vide RC no. 03/21/15.
14. PW-17 on 10.02.2015 took rough notes and measurement of the spot on the basis of which he had prepared the scaled site plan and handed over it to the IO. He had destroyed rough notes and the site plan SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 20 of 61 is Ex.PW17/A. THE CASE PROPERTY
15. One shirt with few brown stain and one pant is identified by PW- 14 as Ex.P1 (colly) that of accused no. 1 Anil.
15.1 One jean having few brown stains and one sweat shirt identified by PW-14 is Ex.P2 (colly) which belongs to accused no. 4 Rahul @ Nikku.
15.2 One pant and one shirt which are Ex.P3 was seized from accused no. 2 Deepak.
15.3 One full sleeve shirt and one pant which is Ex.P4 (colly) was seized from accused no. 2 Deepak.
15.4 One pair of slipper which is Ex.P5 was seized from the accused. However PW-14 cannot tell that from which accused it was seized.
15.5 One pair of shoes and one pair of socks which are Ex.P6 (colly) are deposed by PW-14 as perhaps seized from accused no. 1 Anil.
15.6 Similarly one pair of shoes and one pair of socks seized Ex.P7 could not be identified that to which accused it belongs.
15.7 One pair of shoes and one pair of socks which are Ex.P8 (colly) SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 21 of 61 are deposed by PW-14 as perhaps seized from accused no. 4 Rahul @ Nikku.
16. PW-20 Dr. Ruchi Sharma from FSL has deposed that blood was detected in Ex.1, Ex.2, Ex.3, Ex.5, Ex.6, Ex.7a, Ex.7b, Ex.7c, Ex.8a, Ex.8b, Ex.9a, Ex.11a, Ex.11b, Ex.13a and Ex.15 which were subjected to DNA isolation from which DNA could not be isolated. Identiflier Plus Kit was used for PCR amplification and Gene Mapper IDx software was used for STR analysis. Dr. Rahul Band had found 25 ante-mortem injuries which are as under:
1. Split lacerated wound of size 3 x 0.5 cm x scalp deep.
obliquely present over right parietal region 12 cm posterior to nasion and 20 cm above occipital protuberance, its anterior end is directed anteriorly and to the left, is 1 cm lateral to midline and posterior end 2.5 cm lateral to midline.
2. Split lacerated wound of size 4.5 cm x 0.8 cm x scalp deep. obliquely present overlying left parietal prominence, anterior end of the wound is directed anteriorly and to right, it is 2 cm lateral to midline. Posterior end is 6 cm lateral to midline.
3. Contused lacerated wound of size 1 x 0.6 cm x scalp deep, present over right side of back of head, 9 cm above tip of right mastoid process.
4. Contused lacerated wound of size 2 x 0.7 cm x scalp deep present, vertically over right side of back of head, 5 cm above tip of mastoid process. There is underlying of medial edge of wound.
5. Contusion, bluish red, of size 6.2 x 2.3 cm, present vertically over mid-occipital region, just above occipital protuberance.
6. Contusion, bluish red, round in shape. 5 cm in diameter present over left occipital region, just lateral to the occipital protuberance.
SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 22 of 617. Lacerated wound of size 1.2 x 0.6 cm x skin deep, present horizontally over right forehead region, 1.3 cm above superior orbital margin and 6 cm lateral to midline. There is undermining of upper edge.
8. Three contused lacerations, parallel to each other and 0.5 cm gap in them, each measuring 1.2 x 0.3 x 0.1 cm, present in an area of 4 x 1.5 cm over right forehead region 2.5 cm above lateral end of superior orbital margin. They are oriented obliquely and lateral end directed inferiorly.
9. Contused abrasion, reddish, of size 5.5 x 4 cm, present over right cheek, 1.5 cm lateral to lateral orbital margin of right eye.
10. Contusion, bluish red, of size 4 x 3 cm, present over lateral aspect of right pinna.
11. Lacerated wound of size 1.3 x 0.3 x 0.1 cm, present horizontally over lateral part of left upper eye-lid.
12. Abrasion, reddish, of size 2.5 x 1 cm, present over left temple 2.5 cm lateral to lateral margin of orbit of left eye.
13. Contused abrasion, reddish, of size 5 x 3.5 cm, present overlying left malar prominence and cheek.
14. Contused laceration of size 3 x 0.8 x 0.1 cm, present vertically overlying tragus and anterior margin of left ear.
15. Contusion, bluish red, of size 3.5 x 1.5 cm, present over left temporal region 7 cm above tip of left mastoid process.
16. Contused abrasion, reddish of size 0.8 x 0.6 cm, present over bridge of nose. 1 cm below nasion.
17. Abrasion, reddish, 3 x 0.3 cm, present vertically over dorso-lateral aspect of right forearm, 5 cm above wrist.
18. Curved abrasion, reddish, of size 1 x 0.2 cm, present over front of left arm 6 cm above left elbow.
19. Abrasion, reddish, of size 0.5 x 0.4 cm, present over back of left elbow.
SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 23 of 6120. Multiple contusions, bluish red, varying in size from 0.8 x 0.6 cm to 1.5 x 1.2 cm, present overlying knuckles and first interphalangeal joints of both hands on dorsal aspect.
21. Abrasion, reddish, of size 2 x 0.3 cm, present vertically over costal margin in left hypochondriac region, 12 cm lateral to midline.
22. Abrasion, reddish, of size l x 1 cm, present overlying left anterior superior iliac spine in left pelvic region.
23. Abrasion, reddish, of size 2.5 x 1.2 cm, present over front of right knee on lower aspect.
24. Multiple multi-directional incised wounds intersecting each other at places varying in size from 5 x 0.1 x 0.1 cm to 18 x 0.2 x 0.2 cm, present in an area of 22 x 12 cm on right lateral aspect of waist and flank region around iliac crest.
25. Incised wound of size 17 x 0.1 x 0.1 cm, present horizontally over back of waist extending from 3 cm below and lateral to left posterior superior iliac spine to 4 cm below right iliac crest. Tailing is present towards right.
17. PW-21 Dr. Rahul Band, Assistant Professor Dr. D.Y. Patil Medical College, Pune has deposed about the cause of death which is as under:
Cause of death: Cranio-cerebral damage consequent upon multiple blunt force impacts to head, all injuries are ante- mortem in nature. External injury No. 1 to 23 are caused by blunt force and 24 and 25 are caused by sharp force. All injuries are collectively fatal in ordinary course of nature. External injuries No. 1 to 16 over head alongwith respective internal injuries are collectively sufficient enough to cause death in ordinary course of nature. However, viscera has been preserved to rule out any associated intoxication.
18. Hence prosecution has successfully proved on record that bodily injury are present on the deceased/victim Vijay Kumar. The nature of SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 24 of 61 injury are reported by PW-21 Dr. Rahul Band. There are 25 ante-mortem external injuries. External injury no. 1 to 23 are caused by blunt force and injury no. 24 and 25 are caused by sharp force. External injury no. 1 to 16 are on head and other than this there are also internal injury. Out of 25 injuries, 16 injuries are only on head which are mainly split lacerated wound, contused lacerated wound, contused lacerations and abrasions and lacerated wounds. The internal examination of head and neck has revealed that there are multiple linear fracture of skull with vassation of blood. Extra dural hemorrhage and about 50 ml of blood was present in left temporal region. Patchy hemorrhage are present on both side. The external injury on head which are 16 in number are sufficient enough to cause death in ordinary course of nature. The detailed post mortem report is Ex.PW21/A. The subsequent opinion on weapon of offence which are seven pieces of brick is Ex.PW21/B. As per Ex.PW21/B injury no. 1 to 23 except injury no. 18 could be produced by bricks provided which are Ex.1 to 7 or similar objects. The injury no. 24 and 25 are on waist and flank region around iliac crest and another injury is present horizontally on the back of waist lateral to left posterior below right iliac crest. Tailing is present towards right. Injury no. 1 to 16 over head are collectively sufficient enough to cause death in ordinary course of nature. Hence prosecution has successfully proved on record that death of a human being who is deceased Vijay Kumar is caused and such death was caused as deceased Vijay Kumar has suffered multiple grievous injuries among non grievous injuries. Hence prosecution has successfully proved on record that the above injuries are sufficient to cause death in ordinary course of nature and the evidence of PW-21 has remained unimpeached in this respect.
SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 25 of 6119. Thirdly prosecution has to prove that accused person has intention to inflict that particular bodily injury which was not accidental or unintentional or that some other kind of injury was intended.
20. Under the first part of Section 300 thirdly IPC the prosecution has to prove is that accused has done an act with the intention of causing such bodily injury as is likely to cause death. Hence prosecution has to prove that act was committed by the accused person. PW-10 Ct. Hoshiyar Singh and PW-14 Ct. Kanwar Pal Singh have claimed that they are eye witness to the incident. PW-10 has deposed that on 19/20.11.2014 he was on duty from 11 PM to 5 AM alongwith PW-14 at Rani Jhansi road near Videocon Tower they together heard noise around 1:30 AM coming from bus stand Ambedkar Bhawan. He alongwith PW- 14 reached there where they saw white colour Ertiga car bearing registration no. HR14J7850. He also saw that four boys/accused person were beating a boy who was lying on the footpath. In the meantime PCR van came there. The accused person were caught at the spot by SI Jagdish alongwith staff and with the help of PW-10 and PW-14. Out of four boys/accused two of the accused had pieces of bricks and other two accused were beating with kicks and punches. The accused person who were holding the pieces of bricks are accused no. 1 Anil and accused no. 4 Rahul @ Nikku. The accused no. 2 Deepak and accused no. 3 Rahul Dev @ Ghobi are identified as the accused who were beating with kicks and punches. The accused person were apprehended at the spot. The victim when checked on his person was found with an identity card in his pocket whose name is Vijay Kumar. In the meanwhile another PCR SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 26 of 61 came under supervision of HC Chander Prakash. SI Jagdish has shifted the two accused person to Lady Hardinge hospital and HC Chander Prakash has shifted the victim Vijay Kumar in PCR van to Lady Hardinge hospital.
21. PW-14 has deposed on similar lines of PW-10 and correctly identified all the accused person before the Court. Accused no. 1 Anil and accused no. 4 Rahul @ Nikku were also have injuries on their person. The name of injured was revealed as Vijay Kumar. Ld. APP for the state has cross-examined PW-14 in which the personal search Ex.PW10/E to Ex.PW10/H and the disclosure statement of all the accused vide Ex.PW10/I to Ex.PW10/K was conducted. The place of occurrence was pointed out by the accused person as Ex.PW14/A to Ex.PW14/D.
22. Ld. Counsel for the accused has submitted that PW-10 and PW-14 are not eye witness to the case. PW-11 SI Jagdish Parsad has deposed at first page of his examination-in-chief dated 13.10.2015 that on 19- 20.11.2014 he was on duty as Incharge from 8 PM to 8 AM on PCR van Oscar 48. He was present at Paharganj Chowk at about 12:35 AM when one TCR driver told him that a quarrel had taken place at Rani Jhansi road round about. PW-11 had informed the control room after which he had reached at round about Rani Jhansi road where he did not find anything. Then he heard some noise from the side of Ambedkar Bhawan where one car having Haryana registration number was standing and 3-4 boys were beating one person. Two boys were beating with pieces of brick and two boys are beating with kicks and punches. On inquiry from SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 27 of 61 those boys who were giving beating have replied that they were going from New Delhi Railway Station to Haryana and when they reached at the round about then the victim Vijay Kumar has knocked their window pane of their car. All the four accused are correctly identified before the Court. It is further deposed that the three boys have knocked the window pane of their car at the round about. When they came out of their car then one among those boys caused injury in the hand of accused no. 1 Anil with a sharp object by exhorting that "Abhi Batate Hain". Something was hit on the knee of accused no. 4 Rahul @ Nikku. PW-11 had requested to send one more PCR van. HC Chander Prakash had shifted injured Vijay to Lady Hardinge hospital. PW-11 had shifted accused no. 1 Anil and accused no. 4 Rahul @ Nikku at Lady Hardinge hospital. PW-11 had handed over the custody of the spot and custody of one of the accused to two Constables namely Ct. Kishan and another person. Hence PW-11 SI Jagdish Parsad has deposed that he did not find PW-10 and PW-14 at the spot as nothing was found by him. He has recorded his movement in PCR log book Oscar 48 which is Ex.PW11/A. He has turned hostile to statement under Section 161 Cr. PC Mark PW11/11 in that the accused person had exhorted "Aaj Tera Kaam Tamam Kar Dete Hain".
23. At page 2 of cross-examination dated 20.05.2016 it is deposed by PW-11 as correct that he had called another PCR to shift the third injured to the hospital who is the deceased Vijay and he was shifting two injured person to the hospital. When he stayed there in the meantime another PCR Oscar 70 came there. It is further deposed as correct by PW-11 that the said injured Vijay Kumar was taken to hospital by Oscar 70 and PW-
SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 28 of 6111 had taken the two injured. He had reached at the hospital at 12:55 AM and Oscar 70 also reached simultaneously. He was confronted with entry Ex.PW11/A where it is not recorded that he heard some noise from Ambedkar Bhawan. There he saw that car was parked bearing Haryana registration number and 3-4 boys were beating one person. At page 3 of cross-examination dated 20.05.2016 it is also admitted as correct that the fact of coming of two Constables at the spot is not mentioned in Ex.PW11/A.
24. PW-18/IO SI Vinod Nain in his examination-in-chief dated 23.10.2017 has deposed at first page that in the night at about 1:50 AM he did not find anyone at the spot. He had left Ct. Shree Krishan at the spot and left for Lady Hardinge Medical College hospital. Thereafter he returned at the spot and called Ct. Kanwar Pal/PW-14 at the spot by making a telephone call. He sent Ct. Kanwar Pal alongwith Rukka at the police station for getting the FIR registered. The Ct. Shree Krishan was sent for registration of FIR in cross-case vide FIR no. 596/2014 and Ct. Kanwar Pal was sent for registration of FIR in the present case. PW-18 SI Vinod Nain has deposed at second page of his examination-in-chief that Ct. Kanwar Pal/PW-14 has returned at the spot and handed over Rukka and copy of FIR to PW-18 which is FIR no. 597/2014. It is noted that Ct. Kanwar Pal did not disclose by that time to PW-18 that he is eye witness to this case. This fact is supported by Ex.PW18/B which is Rukka. It was registered at 1:50 AM. It mentions that the HR14J7850 vehicle had five passengers in it who were going to Charkhi Dadri from Ambedkar Bhawan. Some 3-4 person had attacked them with blade on which one among the said five person in the vehicle had got injured from SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 29 of 61 the attacker. This Rukka also does not find mention that any police official/police eye witness was present at the spot. PW-18 at page 3 of cross-examination dated 10.10.2018 has deposed that he had called PW- 14 Ct. Kanwar Pal at the spot who reached there after sometime. PW-18 does not remember mobile number of Ct. Kanwar Pal. It is deposed that he prepared Rukka of FIR no. 597/2014 before arrival of Ct. Kanwar Pal. However at that time he did not make any inquiry from Ct. Kanwar Pal. Hence it creates doubt in the case of the prosecution that if Ct. Kanwar Pal was eye witness to the incident. Had he been eye witness then he should have disclosed it to PW-18 and it must have find mention in the Rukka. If Ct. Kanwar Pal/PW-14 was the eye witness of the incident which occurred before 12:35 AM then how he returned back to the police station is not clear. In fact Ct. Kanwar Pal was duty bound to inform at the police station about the said incident at the first instance if he was the eye witness. Not only he did not inform at the police station at the first instance but he did not disclose this fact to PW-18 while taking Rukka at the police station. PW-18 at page five of his cross- examination dated 10.10.2018 has deposed as correct that no public person claiming himself as eye witness came forward in FIR no. 597/2014 during investigation conducted by him. At page no. 6 it is deposed that no public person met him during the investigation on that night.
25. PW-10 has claimed himself as eye witness in this case. He did not remember mobile number of Ct. Kanwar Pal/PW-14. They do not have any wireless set. Police booth remains locked if there are no police official in the booth. The key of the booth remains in the booth itself. He SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 30 of 61 does not remember whether any register was kept in the booth. He did not notice any register in the booth. Though SHO had already directed for keeping register in the booth. Sometime SHO or Division Officer visit picket during night hours and they make entries in the register. He does not remember the time of receipt of information from a secret informer about coming of 4-5 person with weapons in a vehicle. Againsaid information was received after 2:15 AM. He did not inform the police about secret information nor did he write this secret information. It is denied that they were not present at the picket on that day. It is deposed that they reached at the spot at 1:30 PM and the distance between the police picket and the spot is about 100 mtr. The said deposition which mentions 1:30 PM may be 1:30 AM as the incident has occurred in the night and morning of 19/20.11.2014. In any case it is contradictory to the deposition of PW-11 that he had received information of quarrel around 12:35 AM when one TCR driver told him about quarrel going on at Rani Jhansi road. If deposition of both PW-10 and PW-11 has to be believed then the quarrel must be going on for about 1 hour which is not the case of the prosecution and nor it is reasonable to expect that such quarrel would be going for such one hour. PW-11 has deposed in cross-examination dated 20.05.2016 at PP-2 that he reached at the hospital with injured around 12:55 AM. That not bringing the said register though allegedly maintained as per PW-10 creates doubt in the case of the prosecution if the incident and time of taking action is correctly deposed by prosecution witness. PW-10 does not remember that which particular police officer had apprehended which particular accused. He does not remember who put the injured in the PCR. He does not remember the time when he has left the spot from SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 31 of 61 his picket. He has deposed that PCR official told him that injured person were being taken to Lady Hardinge hospital. He does not remember that at what time the crime team had reached at the spot. However reference to PW-10 or PW-14 is not made in the crime team report. It is deposed by him that at police station he was guarding the accused person while sitting in the room of SI Vinod. Hence the above deposition of PW-10 and PW-14 makes doubtful that they were present at the spot as eye witness otherwise their names could have been mentioned in the Rukka. The FIR Ex.PW1/A find mention that no eye witness was found at the spot. Hence the case of the prosecution as to presence of eye witness namely PW-10 and PW-14 is doubtful.
26. PW-9 who was on duty at PCR Oscar 70 as Incharge had received information at 1:40 AM to reach PCR Oscar 48 as some injured was there at the spot near Ambedkar Bhawan at bus stand Rani Jhansi road. He met SI Jagdish Incharge of PCR Oscar 48 and two officials of local police. However during cross-examination at page 2 dated 23.09.2015 call book of PCR Oscar 70 dated 19.11.2014 Ex.PW9/DA was put to him. It is admitted that Ex.PW9/DA is in his handwriting. He admits that he did not mention the fact of meeting at the spot two police officials/two Constables of PS Paharganj in the call book. The above fact of not mentioning of meeting two police official at the spot in the call book makes the deposition of PW-9 doubtful regarding meeting of two police officials at the spot keeping in view FIR Ex.PW1/A which mentions that no eye witness was found at the spot. PW-18 SI Vinod Nain the first IO when reached at the spot had found that the injured were already taken to the hospital. He called crime team at the spot SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 32 of 61 which took photographs. PW-18 reached at the spot with Ct. Shree Krishan. PW-18 had called Ct. Kanwar Pal/PW-14 for taking Rukka which shows that Ct. Kanwar Pal was called later at the spot.
27. The PW-10 has explained at page 2 of his examination-in-chief dated 24.09.2015 that when they were at the spot then information was received that five person would come alongwith weapon in the vehicle from the side of Jhandewalan on which PW-10 and PW-14 had gone for picket duty and for this reason they were not present where beating of deceased Vijay was done and he could not give statement to SI Vinod. However no DD entry of such duty is proved by PW-10 nor the register at the police picket is proved on record where such direction if entered. PW-10 in cross-examination dated 17.11.2015 at page 6 does not remember that which particular police official had apprehended which particular accused. At page 7 it is deposed that PCR official had told him that the injured person were taken to Lady Hardinge hospital. Ex.PW18/A which is Asal Tehrir mentions that no eye witness was found at the spot. PW-14 though claimed himself as eye witness and had received Asal Tehrir from PW-18 which is also deposed at first page of his examination-in-chief dated 18.02.2016 has not disclosed to PW-18 that he is eye witness. PW-14 has admitted at page 6 of his cross- examination dated 18.02.2016 that he did not made an arrival entry in the register maintained at police picket booth. PW-14 in his cross- examination dated 04.07.2017 has deposed that he had his own mobile number and he had not made any call to the PCR nor to the police station. Hence both PW-10 and PW-14 were duty bound to immediately inform at the police station and the PCR if they are eye witness to the SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 33 of 61 incident. Nor it has brought on record that when they have received secret information of coming of five person armed in a vehicle then they had intimated about this offence to such official at police station. Hence the most natural course and the bounden duty is not followed by PW-10 and PW-14 which makes their testimony further doubtful that they had seen the incident at the spot.
28. Now the prosecution case has no eye witness and the entire evidence is based on circumstantial evidence. The law as to circumstantial evidence is laid down in the citation referred below as under:
Ramanand @ Nandlal Bharti versus State of Uttar Pradesh 2022 LiveLaw (SC) 843 SUPREME COURT OF INDIA in CRIMINAL APPEAL NOS. 6465 OF 2022; OCTOBER 13, 2022=2022 SCC OnLine SC 1396 PRINCIPLES OF LAW RELATING TO APPRECIATION OF CIRCUMSTANTIAL EVIDENCE
45. In 'A Treatise on Judicial Evidence', Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence. According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered:
a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved; &
b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred).
46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows:
1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 34 of 61 nature;
3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved.
47. There cannot be any dispute to the fact that the case on hand is one of the circumstantial evidence as there was no eye witness of the occurrence. It is settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt the complete chain of events and circumstances which definitely points towards the involvement and guilty of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye witness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the expected principles in that regard.
48. A three-Judge Bench of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, held as under:
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]:
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 35 of 61 they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
49. In an Essay on the Principles of Circumstantial Evidence by William Wills by T. and J.W. Johnson and Co. 1872, it has been explained as under:
SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 36 of 61"In matters of direct testimony, if credence be given to the relators, the act of hearing and the act of belief, though really not so, seem to be contemporaneous. But the case is very different when we have to determine upon circumstantial evidence, the judgment in respect of which is essentially inferential. There is no apparent necessary connection between the facts and the inference; the facts may be true, and the inference erroneous, and it is only by comparison with the results of observation in similar or analogous circumstances, that we acquire confidence in the accuracy of our conclusions.?
The term PRESUMPTIVE is frequently used as synonymous with CIRCUMSTANTIAL EVIDENCE; but it is not so used with strict accuracy, The word" presumption," ex vi termini, imports an inference from facts; and the adjunct "presumptive," as applied to evidentiary facts, implies the certainty of some relation between the facts and the inference. Circumstances generally, but not necessarily, lead to particular inferences; for the facts may be indisputable, and yet their relation to the principal fact may be only apparent, and not real; and even when the connection is real, the deduction may be erroneous. Circumstantial and presumptive evidence differ, therefore, as genus and species. The force and effect of circumstantial evidence depend upon its incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove; the mode of argument resembling the method of demonstration by the reductio ad absurdum."
50. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.
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29. Ld. Counsel for the accused has argued that this is the case of blind murder. It is submitted that the accused person have no acquaintance with the victim and there was no motive to kill the SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 37 of 61 deceased. It is argued that the chain of circumstantial evidence is not complete.
LAST SEEN EVIDENCE
30. PW-6 Satya Kumar, father of the deceased Vijay Kumar has deposed that deceased Vijay Kumar is his younger son who was doing business of mobile phone repairing business. On 19.11.2014 at about 8:30/9:00 PM his son Vijay had gone with Vimal. When his son did not return on time then he tried to contact his son Vijay at about 11 PM on mobile phone. Deceased Vijay had replied to his father that he is coming in a short while. However about 12 PM phone of his son was got switched off. While leaving with Vimal his son had told that if he would be late then he will remain with his friend Vimal. However his son Vijay did not return till morning and at about 8 AM one police Constable came at his residence and informed that Vijay had received injuries in a quarrel who was admitted in Lady Hardinge hospital. When he reached at the hospital then he found his son has expired. His statement is Ex.PW6/A to the IO. PW-18 in his examination-in-chief dated 09.10.2018 has identified photographs of Micromax mobile phone and keys of the scooty as Ex.PW-14 which belongs to the deceased. Ld. Counsel for the accused has argued that the prosecution has not examined the said Vimal with whom the deceased had went away from his home and with whom the deceased Vijay was last seen. It is argued that the Vimal was the material witness and therefore the last seen theory is not proved by the prosecution on record. It is argued that PW-18 has deposed at first page of his cross-examination dated 10.10.2018 that he had collected CDR of SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 38 of 61 mobile phone of deceased. It is deposed that the said CDR is not placed on record in this case which was placed on record in the case of FIR no. 596/2014 lodged by the accused person. The non production of the said record before the present Court can only create doubt in the case of the prosecution about presence of victim at the spot as it is a material evidence which not only shows that with whom the deceased had last talked with but also could have proved his location at different time. Hence the said record is material evidence and not produced by the prosecution on record.
31. PW-1 Jagdish has deposed that on 20.11.2014 at about 4:30 AM he had received a Tehrir brought by Ct. Kanwar Pal/PW-14 on the basis of which PW-1 had registered FIR Ex.PW1/A and made endorsement on Rukka which his Ex.PW1/B. DD no. 6A Ex.PW1/D1 was recorded in respect of registration of the case. FIR no. 595/2014 was recorded at about 5:40 PM on 19.11.2014 and FIR no. 598/2014 was recorded at 2:05 PM on 20.11.2014. FIR No. 597/2014 Ex.PW1/A is dated 20.11.2014 which was registered at 4:30 AM. It is suggested by ld. Counsel for the accused to PW-1 that FIR Ex.PW1/A and FIR no. 596/2014 are ante-dated. Ld. Counsel for accused has submitted that the FIR is ante-dated by reading the time as 4:30 PM in Ex.PW1/A in place of 4:30 AM. The chargesheet mentions that the Asal Tehrir was sent at police station at 4 AM. In such view of the matter the FIR is not seen registered ante-time. PW-13 Ct. Shree Krishna at second page of his deposition dated 20.09.2017 has stated that SI Vinod prepared Tehrir and gave it to him for registration of FIR and he left for the spot after 3:15 AM. To the contrary PW-14 at page first of his examination-in-chief SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 39 of 61 dated 18.02.2016 has deposed that at about 4 AM he was called at the spot by SI Vinod and handed over him the Tehrir for registration of FIR. PW-13 has deposed that when he had reached at the spot then Ct. Kanwar Pal had come there. The FIR mentions that it was given to PW- 14 Ct. Kanwar Pal for registration and not to PW-13 who had taken Rukka of cross-case and the same is proved by PW-1 and hence prosecution has successfully proved on record that the FIR was not ante- dated and it was duly registered on Rukka taken by PW-14 and sent by PW-18.
32. PW-9 HC Chander Prakash on 19/20.11.2014 was posted at PCR Oscar 70 as Incharge and at about 1:40 AM he has received direction to reach Oscar 48 as some injured was there. He had immediately reached at the spot at Ambedkar Bhawan bus stand Rani Jhansi road where he met SI Jagdish/PW-11 Incharge of Oscar 48 and two officials of local police station. One boy aged about 19 years was bleeding from his head who was in unconscious condition. On the instruction of PW-1 SI Jagdish he took that boy Vijay Kumar to Lady Hardinge hospital. However 3-4 boys were present there at that time. Hence when PW-9 had reached at the spot the said 3-4 boys were present at the spot, PW-11 was present at the spot and the deceased Vijay Kumar was present at the spot in injured condition. In cross-examination it is deposed by PW-9 that he had reached at the spot at about 1:48 AM. It is further admitted as correct that he collected the message at 1:50 AM that one person is in unconscious condition who was being taken to the hospital.
33. PW-11 has deposed that on 19/20.11.2014 he was posted as SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 40 of 61 Incharge of PCR van Oscar 48. he has also got information from one PCR driver around 12:35 AM that a quarrel was going on at Rani Jhansi road round about. He has informed the control room and when he had reached Rani Jhansi road then nothing was found there. At that time he heard the noise coming from the side of Ambedkar Bhawan. He had seen 3-4 boys were beating one person and one car bearing registration of Haryana which is Ertiga car in this case was standing there. Two boys were beating with bricks and two boys were beating with kicks and punches. When PW-11 has asked said boys that why they are beating the said person then they had replied that this boy has broken/knocked their window pane of their Ertiga car. All the accused are correctly identified by PW-11 before the Court.
34. PW-4 Sh. Arvinder Singh running a workshop in the name and style of Vikram Automobiles. He is expert in examining the vehicle. He had inspected Maruti Ertiga car HR14J7850. He notice scratch mark on front of the bonnet of the Ertiga car and the vehicle was fit for road test. His report is Ex.PW4/A. The mechanical inspection report does not find mentioned that the window pane of the Ertiga car was broken. No cross- examination of PW-4 is done in this respect. Hence there is no evidence that window pane of Ertiga car was ever broken by the deceased Vijay Kumar.
35. It is suggested by accused to PW-11 that PW-11 had asked accused person sitting in Ertiga to help police sitting in Oscar 70 to put the injured Vijay Kumar in the said PCR. Hence with the above evidence it has come on record that all the accused were present at the spot of SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 41 of 61 incident including the deceased Vijay Kumar.
MEDICAL INJURIES ON THE ACCUSED PERSON AND ON THE DECEASED VIJAY KUMAR
36. PW-11 SI Jagdish Parsad in his cross-examination dated 20.05.2016 has deposed at first page as correct that accused no. 1 Anil and accused no. 4 Rahul @ Nikku had sustained injuries. It is deposed at second page as correct that he had called another PCR to shift the injured to the hospital while stating that there were three injured person and he had shifted three injured person to the hospital. Hence PW-11 has shifted two injured person who are accused to the hospital.
37. It is deposed by PW-11 at first page of his cross-examination dated 20.05.2016 as correct that accused no. 1 Anil and accused no. 4 Rahul @ Nikku had sustained injuries. It is suggested to PW-11 in cross- examination that the accused no. 1 Anil and accused no. 4 Rahul @ Nikku had told that there were three assailants and two out of which ran towards Jhandewalan and one towards Ambedkar Bhawan by hanging on a cantor truck. Hence the accused person have admitted that they were present at the spot with the deceased and deceased was there with three person. The said three person started running away. As per the accused deceased Vijay Kumar had started running and in such process of running towards Ambedkar Bhawan the deceased Vijay Kumar had tried to capture a cantor truck on which he cannot find a proper grip and got himself struck in the body of the cantor. He got dragged for some distance. In this process the head of the deceased Vijay Kumar has scrubbled for some distance and he had received injuries on his head.
SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 42 of 6138. To substantiate the above averment question is put during cross- examination to PW-21 that injury no. 1 to 23 described in post mortem in Ex.PW21/A was possible when a person hanging behind a moving vehicle and jumps from the same and strikes against the pavement then roll down on the pavement where stones were lying. To this question PW-21 had replied that the injuries are concentrated mainly on the head. During roll over injuries must also come on other parts of body which were not present on the subject deceased Vijay Kumar on whom the post mortem was conducted. It is further deposed by PW-21 that the said injury were on all directions on the head and as suggested by defence the injury could be produce from multiple directions during a roll over while having a fall from a cantor truck. It is suggested to PW-21 that injury no. 25 could be possible if an iron strip protruding from the vehicle and the clothes worn by the deceased were entangled with that while jumping from the said vehicle which can cause scratch on the waist. On this question PW-21 has replied that on absence of said vehicle and strip the hypothetical question cannot be answered. Hence from the above deposition which is defence of the accused that there was a cantor truck from which the deceased Vijay Kumar had sustained injuries has to be proved only by the accused as a defence. PW-21 has not supported the suggestion of accused person that 23 injuries could be sustained on the deceased Vijay Kumar on a fall from a cantor truck without having injuries on the other part of the body. Hence the accused has failed to probabilise the defence of fall of the deceased Vijay Kumar from Cantor and thereby sustained 23 injuries on his person.
SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 43 of 6139. PW-18 at second page of his cross-examination dated 10.10.2018 has deposed as correct that they were assailant in FIR no. 596/2014. He cannot admit or deny that deceased Vijay Kumar is involved in 4-5 criminal cases in PS Paharganj. However it is admitted as correct by PW- 18 that two person who were victim in FIR no. 596/2014 were having injuries and the said FIR was lodged by the accused person against the victim in the present case. One of the accused had injury on his finger and the other had blood stains on his trousers. It is admitted as correct that deceased Vijay Kumar was assailant in FIR no. 596/2014. However the said FIR and its consequent chargesheet and decision is not available before the present Court. The accused person were bound to follow taking of necessary steps in such respect and the allegation in the said chargesheet have to be proved in that case only. The evidence in defence in the present case has to be led independent to that case. If the accused has suffered injury then the nature of injury has to be seen in reference to the nature of injury suffered by deceased Vijay Kumar independent of what was said in the said FIR which is also not proved in the present case.
40. Accused person have brought one evidence in defence who was DW-1 Rakesh Kumar who is Record Attendant from the office of Lady Hardinge hospital. DW-1 Rakesh Kumar is Record Attendant and not Record Clerk since last 15 years. Ex.DW1/A(colly) is discharge summary sheet of deceased Vijay Kumar which was prepared by Dr. Sumit. The treatment sheet is Ex.DW1/B. The surgery notes on MLC 48886 is Ex.DW1/C. The admission slip of deceased is Ex.DW1/D which is a copy of MLC from department of surgery. DW-1 has admitted SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 44 of 61 that in MLC Ex.DW1/A on discharge summary mention the heading name of patient, his age, CR number and MLC number serially on left side/column side whereas in the document produced in evidence which is corresponding document they were written on top right side and both the writings are of different person. Ex.DW1/A is carbon impression. In the record brought at page 3 there is overwriting on the signature at bottom right of Dr. Sumit and his designation as SR below the signature has overwriting which is not in the judicial file Ex.DW1/A. Both the signature and designation in the above two documents which are Ex.DW1/A and the corresponding record produced by DW-1 are of same person. Further, the serial no. 13 and 14 mentioned on the judicial file is not mentioned in the record produced by DW-1. It is admitted as correct that the admission slip of the deceased was prepared by Dr. Sumit does not bear his signature. Ex.DW1/A and Ex.DW1/B does not bear stamp of doctor. The fourth page of Ex.DW1/B which is treatment sheet that below the carbon impression noting there is another noting by pen which is of different person. The stamp of doctor is also not put on them. DW-1 had not seen Dr. Sumit and Dr. Gagan writing and signing the documents in his presence as they belongs to other department. Hence the accused person have failed to point out that how the evidence of DW-1 help their case when DW-1 cannot identify the signature and handwriting of Dr. Sumit and Dr. Gagan and he has not seen them writing and signing.
41. PW-8 at first page of his examination-in-chief dated 02.09.2015 has deposed that on 24.12.2014 on direction of IO one sealed Pulanda containing viscera was deposited at FSL, Rohini. Ld. Counsel for the accused has submitted that the viscera is not produced in evidence by the SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 45 of 61 prosecution. It is argued that the MLC (at page 117 of document file) which is Ex.PW22/C of the deceased mentions that deceased was smelling of alcohol at 2:15 AM. According to ld. Counsel for the accused the deceased was intoxicated and must have not been behaving normally. While he was running and catching the cantor truck he had fallen and received injuries and his fall must be also due to his alcohol consumption. However the percentage of alcohol has not come on record which was in the blood of the deceased. Unless the degree of alcohol is not proved then it cannot be said that the alcohol had effect on the mind of the deceased Vijay Kumar. The discharge summary (at page no. 161 of document file) Ex.DW19/A records that there is alleged history of fall from a truck and when the brake applied at that time the patient deceased Vijay Kumar was climbing the truck then the patient has fallen down backwards and his head had hit on the ground and thereafter he has received multiple injuries. It is noted that Ex.DW19/A was filed by the prosecution. The prosecution has not brought this on record while recording evidence. However accused has liberty to rely on this document of the prosecution and this document still be read for and against the prosecution having so filed. At point A in Ex.DW19/A bears signature of Dr. Sumit and the above document has come in cross- examination of PW-19 Insp. Sukhdev during his cross-examination dated 22.09.2025.
42. PW-19 in his cross-examination dated 22.09.2025 has deposed that the discharge summary of deceased Vijay Kumar was already available in police file which were collected by IO/SI Vinod Nain. He has identified the treatment sheet of deceased as Ex.DW1/B and the SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 46 of 61 discharge summary Ex.DW19/A. He has not sent Ex.DW19/A and Ex.DW1/B to the concerned doctor for opinion nor he has obtained any subsequent opinion in respect to the contents. He has admitted that it is so mentioned in Ex.DW19/A and Ex.DW1/B (treatment sheet) that the injured had fallen from truck. He has deposed that the said truck could not be traced. Hence the above evidence of the prosecution must have been suitably explained and which has remained unexplained. The above documents of the prosecution can be read in evidence. It is laid down in citation titled Pardeep Khatri & Ors. Vs. State of Delhi Manu/DE/2809/2014 Equivalent/Neutral Citation: 2014:DHC :5864-DB, 2014(4)JC C 3003 Hon'ble High Court of Delhi Crl. A. 1564, 1660/2013 and Crl. A. 1000/2014 Decided On: 11.11.2014 at relevant para no. 6 that when a finding is given in a record maintained during normal course of duty if relevant for defence at a murder trial the Court would be bound to consider them moreso for the reason that an unproved document can be read in evidence against a party who has filed the document and thus relied upon it. In the said case the PCR form were relied upon. The relevant para of citation is reproduced hereasunder:
6 . The relevance of what we have noted hereinabove would be that if the entries marked 'DY' on the first PCR form, only first portion whereof has been exhibited as Ex.PW-7/A, was proved and so was the last entry marked 'D2' on the second PCR Form, limited portion whereof was proved as Ex. PW-21/A, it would assume significance that the relatives of the deceased who claimed to be eye witnesses did not volunteer the necessary information to the police officers who had reached Saroj Hospital by around 01:00 hrs. But it is nobody's case that said entries were not made at the Police Control Room at the time noted against each entry. Finding a mention in a record maintained during normal course of duty, if relevant for the defence at a murder trial, the Court would be bound to consider them, more so for the reason an unproved document can be read in evidence against a party who has filed the SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 47 of 61 document and has thus relied upon it.
43. In fact PW-19 has deposed that efforts were made during investigation to trace the friend of the deceased who had accompanied the deceased during investigation. It is admitted that the investigation agency has failed in tracing out the address of the said friend of the deceased and also his identity. PW-19 is not aware about the result of cross-case FIR no. 596/2014 filed by the accused person who gave the allegedly history to Dr. Sumit which was recorded in Ex.DW19/A and the same is not produced on record. The MLC Ex.PW22/C of the deceased mentions smell of alcohol.
44. PW-9 has deposed that he reached at the spot at 1:48 AM and he had collected message at about 1:50 AM that one man was unconscious. He reached at the spot and found two injured and other than this one boy 19 year old was bleeding from his head. Above deposition is contrary to deposition of PW-11 SI Jagdish Prasad as he had already reached at 12:55 AM with the injured at the hospital and therefore could not meet PW-9 at the spot after 1:50 AM. Hence PW-9 has not witnessed the incident though he witnessed what had occurred immediately after the incident. PW-11 had taken accused no. 4 Rahul @ Nikku and accused no. 1 Anil to the hospital in PCR van to Lady Hardinge hospital. Hence it is the PW-11 who had reached first at the spot who had informed another PCR van to come at the spot to take the deceased Vijay Kumar to the hospital. PW-11 had taken accused no. 1 and 4 to the hospital. Hence the first person to reach at the spot immediately after the incident is PW-11. The case is not entirely based on circumstantial evidence. Both accused SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 48 of 61 no. 1 and 4 have injuries on their person and the deceased Vijay Kumar has also suffered grievous injuries. The accused no. 1 and 4 were found present with the deceased Vijay Kumar at the spot. The arrest memo of all the four accused shows which are Ex.PW10/A to Ex.PW10/D mentions the place of arrest PS Paharganj, Delhi and all the accused were arrested on 21.11.2014 and not on the date of incident. Hence the accused person were not caught at the spot. PCR Form Ex.PW2/A dated 20.11.2014 at about 1:52 AM mentions that near Ambedkar Bhawan three persons were attacked. 3-4 person had got injuries of blade. The person who had inflicted the injuries by blade was beaten by the person who suffered blade injuries and the person who was beaten has become unconscious. The MLC of accused no. 4 Rahul @ Nikku s/o Ram Avtar is Ex.PW22/A (at the page no. 281 of document file). The nature of the injury are recorded as simple which mentions abrasion on right knee. The said MLC is therefore corroborated with the prosecution evidence that the accused person who were travelling in Ertiga car were first attacked. The MLC of accused no. 1 Anil s/o Sant Lal is Ex.PW22/B who has small cut over left middle finger having active bleeding. Hence injuries were received by two of the accused person and the kind of weapon is recorded as blunt. Hence prosecution has successfully proved that accused no. 1 and 4 were present at the spot who were taken by the PCR van from the spot. They had first received injuries from the victim and his associates.
45. PW-11 had seen that 3-4 person were beating one person. Had PW-11 seen the beating then the boys giving the beating either must be three or must be four. PW-9 has also reported that 3-4 boys were there.
SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 49 of 61In his statement under Section 161 Cr. PC PW-11 had stated that four person were beating one boy. However he has turned hostile to the fact that accused person has stated that "Aaj Tera Kaam Tamam Kar Dete Hai Phir Tu Kisi Ke Sath Jhagda Karne Layak Nahi Rahega ". However his statement under Section 161 Cr.PC that PW-10 and PW-14 has simultaneously reached at the spot has remained unproved on record. As per PW-11 in his statement under Section 161 Cr. PC all the four accused person were caught at the spot. Whereas PW-11 had taken only accused no. 1 and 4 and not accused no. 2 and 3. It is not deposed by him in his examination-in-chief that in whose custody he has left accused no. 2 and 3 at the spot. It is not deposed by PW-18 SI Vinod Nain that he had apprehended accused no. 2 and 3 at the spot. All the accused person reached at PS on 21.11.2014 when notice was served on them by PW-18 SI Vinod Nain. PW-19 Insp. Sukhdev Meena had joined the investigation on 21.11.2014. Hence none of the accused were arrested on 20.11.2014 nor it is proved on record that accused no. 2 and 3 were present at the spot. The accused no. 1 and 4 were taken to the hospital vide MLC Ex.PW22/A and Ex.PW22/B by PW-11 SI Jagdish Prasad only and not by accused no. 2 and 3. This shows that accused no. 2 and 3 had not reached at the hospital in the PCR and nor it is case of PW-11 that he had taken accused no. 2 and 3 alongwith them to the hospital.
46. PW-11 SI Jagdish Prasad has identified correctly all the four accused in his examination-in-chief. In cross-examination for accused no. 3 Rahul Dev it is deposed by PW-11 that he had handed over the custody of remaining two accused to two Constables from the police picket who were present there. Hence it is not controverted that accused SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 50 of 61 no. 3 was present at the spot immediately after the incident. In cross- examination by accused no. 2 Deepak it is deposed as correct that accused no. 1 Anil and accused no. 4 Rahul @ Nikku had sustained injuries. It is suggested that the remaining two accused who were accused no. 2 and 3 were asked to follow the PCR vehicle on which accused no. 2 and 3 had followed the PCR in their Ertiga car. This suggestion is denied by PW-11. It is admitted as correct that coming of two Constables is not mentioned in Ex.PW11/A. Hence the above facts shows that the theory of appearance of two Constables at the spot has remained unproved on record. The suggestion by accused person during cross-examination shows that all the accused person were present at the spot who were found there immediately after the incident by PW-11. Hence the presence of accused person is proved on record.
47. The accused person has relied on Ex.DW1/A the death summary and Ex.DW19/A the discharge summary sheet. In Ex.DW19/A it is mentioned in the history that there was a fall from a truck which had applied brake. The patient/deceased Vijay Kumar was climbing the truck who had fallen and suffered injury when the brake was applied. In the said history sheet it is not mentioned that on what basis it was prepared. Though one Dr. Sumit is signing it. The history sheet must be prepared on some basis. Similarly accused person have relied on Ex.DW1/C notes of the case dated 20.11.2014 at 3 AM in respect of deceased Vijay Kumar where it is mentioned that the patient was brought by PCR with the allegation of fall from a truck due to brake applied while patient was climbing on it. The patient had fallen backwards who got hit on the ground and received injuries. PW-11 SI Jagdish Kumar had taken the SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 51 of 61 accused person to the hospital and therefore he is not the police official who was giving the alleged history. The MLC Ex.PW2/C of the deceased Vijay Kumar mentions that HC Chander Prakash/PW-9 had brought the deceased to the hospital in PCR Oscar 70. In his examination-in-chief PW-9 has not deposed that deceased Vijay Kumar had fallen from the truck nor it is deposed that he had seen deceased climbing the truck or that he has seen the deceased falling from the truck. Hence this fact is not mentioned in MLC Ex.PW22/C recorded at 2:15 PM on 20.11.2014. Hence PW-9 is not witness to the incident and he has not stated so in the MLC. Therefore even though it is mentioned in Ex.PW19/A and Ex.DW1/C that the patient had fallen from truck does not support the case of accused person and does not give them any benefit as no evidence has come on record that on what basis this history sheet was prepared by one Mr. Sumit. DW-1 has deposed that MLC Ex.DW1/A was prepared by Dr. Sumit and hence he recognized Dr. Sumit working at Lady Hardinge Medical College. Ex.DW19/A is not put to PW-9. He is not believed to be eye witness to this case. Before PW-9, PW-11 had already reached at the spot. The PW-9 had only taken deceased Vijay Kumar to the hospital. Hence the history in Ex.PW19/A or Ex.DW1/C can only be told by PW-9 and by no other. Hence when PW-9 is not believed to be eye witness then it cannot be believed that he has seen the deceased running to save himself from the accused person, thereby he was climbing a truck/cantor and in the process had a fall. Therefore it cannot be said that the deceased Vijay Kumar has suffered injuries by a fall from a truck/cantor on such deposition of PW-9. There is no other person on record who could have given the history of injury on the deceased except the accused person. Hence the mentioning in discharge SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 52 of 61 summary that the injury were suffered by deceased due to fall from a truck has no basis in prosecution evidence on which accused could have relied upon. Even when Ex.DW19/A is document of the prosecution then also no benefit can be given to the accused of such recording of a fall from a truck of the deceased as it is not clear that this secondary and hearsay evidence was prepared on the basis of which primary evidence. Further, the accused could have summoned Dr. Sumit to prove the basis of such secondary evidence which is not done by them in their defence. Hence it is held that accused person have failed to show secondary and hearsay evidence Ex.DW19/A and Ex.DW1/C could be relied upon in absence of primary available evidence. It is not known that from whom this information was derived by Dr. Sumit and no basis could be found on record for the above information.
48. In the FSL report Ex.PW20/A under the result of analysis blood was detected in Ex.1 which is dirty greenish gauze cloth. Blood was detected in other exhibit as follows: In Ex.2 dirty foul smell was found in gauze cloth piece. In Ex.3 soil kept in plastic container was found with blood. Ex.5 is pieces of bricks was found stained in blood. Ex.6 is dirty brownish gauze of cloth piece which is blood in gauze of deceased. Ex.7A is foul smelling jean pant with belt. Ex.7B is foul smelling jacket. Ex.7C is foul smelling underwear. Ex.8A is dirty shirt having brown stains. Ex.8B is one pant. Ex.9A is one jean pant having few brown stains. Ex.7A, 7B and 7C belongs to the deceased Vijay Kumar. Ex.11 one jean pant belongs to accused no. 2 Deepak have very few brown stains having found stain with blood. Accused Deepak had not received any injury. Ex.11B is one full sleeve shirt as few brown stains of blood SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 53 of 61 which belongs to accused Deepak. Ex.13A belongs to accused Anil is a pair of shoes having blood stains. Ex.15 is pair of shoes of accused Rahul which found containing blood stains. The result of analysis is that Alleles in Ex.6 which is gauze cloth piece of deceased are accounted in Alleles Ex.7A, 7B, 7C of the deceased and Ex.8B which is pant of accused no. 1, Ex.9A which is jean pant of accused Rahul, Ex.11A which is jean pant of accused no. 2 Deepak and Ex.11B which is shirt of accused Deepak. The MLC of the accused no. 1 and 4 does not show that they have received such injuries from which blood could have come out. Nor it is case of the defence that the blood on the above exhibits belongs to the accused. Therefore the blood of the deceased was detected on the clothes of accused person. The accused person were found together with the deceased at the spot. The case of the accused person is that they were initially attacked by the deceased and his two accomplice. The said two accomplice could not be arrested and could not found by the IO. The evidence as led by the prosecution shows that the deceased has more than one person with him. The post mortem report Ex.PW21/A records history that the deceased alongwith his accomplice attacked five person travelling in car. The attack was with blade, the said person in the car retaliated and beaten him at Rani Jhansi road on 20.11.2014 at 1:50 AM. Hence blood was detected on the clothes of accused no. 1 Anil, accused no. 2 Deepak Sheoran and accused no. 4 Rahul @ Nikku. Blood was not detected on the clothes and person of accused no. 3 Rahul Dev @ Ghobi. In absence of detection of blood on the clothes of accused no. 3 Rahul Dev it is a missing link in the chain of circumstantial evidence produced by the prosecution in his respect. His presence on the spot cannot be doubted. However mere presence of accused no. 3 Rahul Dev at the spot SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 54 of 61 does not make him guilty. No eye witness is produced by the prosecution on the record. Had accused Rahul Dev @ Ghobi was involved in the attack then some blood must have come on his clothes/articles as in the case of other accused. Hence doubt has arisen that if Rahul Dev @ Ghobi accused no. 3 had participated in the said beating of the deceased Vijay Kumar. In absence of this missing link it cannot be said that accused Rahul Dev is involved in the offence in any manner as there is no circumstantial evidence to show that accused no. 3 Rahul Dev had participated in the commission of crime in this case.
49. The subsequent opinion was also obtained in this matter vide Ex.PW21/B vide which opinion is given that external injuries no. 1 to 23 except injury no. 18 could have been produced by brick pieces provided or similar objects. Injury no. 18 is possible by a nail mark abrasion. Injury no. 24 and 25 were produced by sharp force. Seven brick pieces were seized. In Ex.1 the brick has few dark brown black colour stains present at some places. In Ex.2 the brick has dark brown stains present at places. In Ex.3 dark brown black stains are present at places. In Ex.4, 5, 6 and 7 dark brown black stains are present at places. Hence the articles of offence were found at the spot which are brick. PW-21 has proved that the said injuries could be caused by bricks. PW-21 has also controverted the defence that the injuries were sustained by fall from a moving vehicle. PW-21 has deposed that in the case from fall from a moving vehicle the injury must come also on other parts of the body which is not the case with the deceased Vijay Kumar. Injury no. 1 to 23 are possible if the strike of stone is done from all directions on the upper part of the body. The article of offence are also recovered from the spot and injuries SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 55 of 61 were caused on the deceased Vijay Kumar. Hence it is held that accused no. 1, 2 and 4 has caused injuries on the deceased Vijay Kumar by the pieces of bricks Ex.1 to Ex.7 and there is missing chain in the circumstantial evidence in respect of accused no. 3 Rahul Dev for causing such injuries.
50. In the statement under Section 313 Cr. PC accused no. 2 Deepak Sheoran has flatly denied any such quarrel claiming that it was a blind murder. He had failed to throw any light that why the brick pieces were lying there having dirty brown stains at the spot which are Ex.1 to Ex.7. He has failed to throw any light on recovery of blood stained shoes and socks Ex.P-7(colly) and to question no. 3 it is stated that the recovered clothes and shoes were planted on him. Soon after the incident immediately PCR found the deceased and accused person where accused no. 1 and 4 were injured and the deceased Vijay Kumar was also lying at the spot in injured condition on which no light is thrown by the accused person. Similarly blanket denial is put forward by accused no. 4 Rahul @ Nikku during recording his statement under Section 313 Cr. PC. The same stand is taken by the accused during recording of their additional statement under Section 313 Cr. PC. In the present case no plea was taken by the accused during trial or in statement under Section 313 Cr. PC that they were occupants of the Ertiga car. In the light of evidence discussed above and proved against the accused the non explanation or false explanation of accused under Section 313 Cr. PC can be used as an additional link in view of citation titled Raja Naykar vs. State of Chhattisgarh 2024 INSC 256 dated 24.01.2024. The accused has right to remain silent or can even remain in complete denial but on the face of SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 56 of 61 proved circumstance against them it was incumbent on them to probabilise that they are not guilty and in absence of the same adverse inference could be drawn against them. It was held in case titled Ram Naresh and Ors. Vs. State of Chhattisgarh AIR 2012 SC 1357 that accused has a duty to furnish an explanation under Section 313 Cr. PC regarding incriminating material produced against him and if the accused chooses to remain silent then adverse inference in such circumstance can be drawn against him. In the present case the accused has failed to probabilise his defence by any explanation in their statement under Section 313 Cr. PC and therefore adverse inference is drawn against accused no. 2 and 4 that it is they who had committed offence for which they do not have any justifiable explanation.
51. It has come on record that the deceased with other person had attacked first upon the accused person. Accused person have right to private defence. This plea of private defence is not taken by them. However even when the plea was not taken then also on the face of evidence which has come on record the above plea could be considered. How much right of private defence has occurred or arises in the present case has to be seen as per evidence on record. The nature of injuries on accused no. 1 and 4 vide MLC Ex.PW22/A and Ex.PW22/B are simple, minor and they were by some blunt object. The nature of injuries are therefore minor on the accused no. 1 and 4. The nature of injuries sustained by deceased Vijay Kumar are not only grievous but they are multiple injuries and mainly on the head of deceased Vijay Kumar. Other than this the accomplice of deceased has already ran away. Therefore the right of private defence to the degree of injuries suffered by the deceased SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 57 of 61 are not seen in balance. With such minor injuries on the accused person it was not expected reasonable that such serious injuries could have been justified on the deceased Vijay Kumar which are not one in number but they are 25 in number which ultimately resulted to his death.
52. The intention to cause such bodily injury is to be gathered from the facts and circumstances of the case. It has come on record that the victim had initially attacked the accused person while they were passing from the spot. Both the accused and victim are not known to each other. There is no previous enmity nor there is any pre-mediation. The injuries are also suffered by accused no. 1 and 4 though simple in nature. Hence the accused person have acted in right of their private defence of person and property which is exceeded by them given under law and thereby causes death of Vijay Kumar. The initial intention could not be said to commit murder of the deceased. Hence in the facts and circumstances of the case Exception 2 of Section 300 IPC is held applicable and thereby the case comes out of Section 300 IPC.
53. Now it has to be seen that whether the case falls under Section 304 Part I or Section 304 Part II of IPC. The intention to cause death is to be gathered generally from the factors laid down at para no. 16 of citation titled N. Ram Kumar Vs. State represented by Inspector of Police (supra). In the present case the vehicle was gathered from the spot, there was sudden quarrel/fight. There is absence of pre-mediation or prior enmity. Minor injuries were also suffered by the accused and there was grave and sudden provocation which was not first initiated by the accused person. The fight had started in a heat of passion. However the SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 58 of 61 accused person had aimed the attack on the vital part of the body of the deceased. They had inflicted several and multiple blows on the deceased and there are about 25 injuries. 16 of which are on the head only. Since one of the exceptions under Section 300 IPC is attracted in the matter therefore now the offence is seen in the light of Section 304 IPC. The offence primarily falls under the category of Section 300(3)/thirdly of IPC.
54. Both the expression intent and knowledge postulate the existence of positive mental attitude which is of different degree. The mental attitude towards the consequences of the conduct is one of intention and knowledge. The injury on the deceased was largely on head and according to medical evidence the said injuries together have proved fatal. The fourth exception of Section 300 IPC covers act done in sudden fight and when there is absence of pre-mediation. That was done in the heat of passion which clouds men's sober region. There is provocation both in Exception 1 and Exception 4. Exception 4 deals with cases where provocation is given in the origin of the dispute and the subsequent conduct of both parties put them in guilt upon equal footing. Sudden fight implies mutual provocation and blows on each side and it is not traceable to unilateral provocation. There is no previous deliberation. Hence in the facts and circumstances of the case Exception 1 to Section 300 IPC is held appropriately applicable. The nature of injuries suffered by the deceased are grievous. However there were other person also with the deceased who ran away from the spot and who could not be caught. The prosecution has not even brought the mobile phone call detail record of the deceased. The accused person has chosen the vital part of the body SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 59 of 61 to cause attack which is head and it led to multiple fracture on the skull. This shows the force with which the accused person has used the brick/weapon. The cumulative effect of all these factors led to irresistible conclusion that the accused person had intended to cause death. Hence the only possible inference is that the accused person had intended to inflict injuries caused on the deceased Vijay Kumar. Once the existence of injuries proved then the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. The injury was serious. Hence it is held that the accused has intention to cause such bodily injury as is likely to cause death and therefore accused no. 2 Deepak Sheoran and accused no. 4 Rahul @ Nikku are held guilty and convicted under Section 304 Part I IPC.
55. The letter dated 11.08.2015 written by Insp. Sukhdev Meena/PW- 19 though the letter is not exhibited which mentions that the white colour Ertiga car of accused person was found parked in which blood was also found scattered and it mentions that during investigation the accused person were apprehended at the spot. The accused person were not apprehended at the spot but they were called at the PS on the next day. However, it is admitted case of the prosecution that the blood was scattered in the Ertiga therefore the said blood must be of accused person only which was suffered on an attack caused by deceased Vijay Kumar with his other accomplice. PW-19 Insp. Sukhdev Meena has deposed at first page of his cross-examination dated 22.09.2025 that efforts were made during investigation to trace the friend of deceased who had accompanied the deceased whose name and address could not be found during investigation and it could not be ascertained. Hence the facts SC No. 27320/2016 FIR No. 597/2014 State Vs. Anil @ Kokki & Ors. Page 60 of 61 discussed above have proved that the deceased Vijay Kumar and other person accompanied him had first attacked the accused person and later the said accomplice of deceased had ran away from the spot.
56. In view of above discussion, it is held that prosecution has successfully proved the necessary ingredients laid down under Section 304 Part I/34 IPC against the accused no. 2 and 4. Hence accused no. 2 Deepak Sheoran and accused no. 4 Rahul @ Nikku are held guilty and convicted under Section 304 Part I/34 IPC. Further, accused no. 3 Rahul Dev @ Ghobi stands acquitted for the offence under Section 304 Part I/34 IPC. The earlier personal bond of accused no. 3 Rahul Dev @ Ghobi stands cancelled and surety bond stands discharged and the documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-endorsed. In terms of Section 481 of BNSS/437A Cr. P.C, the accused no. 3 Rahul Dev @ Ghobi furnished his bail bond as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
Put up for arguments on sentence on 19.05.2026.
Announced in the open Court JOGINDER Digitally
JOGINDER
signed by
on 28.04.2026. PRAKASH PRAKASH NAHAR
Date: 2026.04.28
NAHAR 15:36:35 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 27320/2016
FIR No. 597/2014
State Vs. Anil @ Kokki & Ors. Page 61 of 61