CRL.A. 1008/2025 Page 1of 34

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 4

h

February, 2026

Pronounced on: 27

th

February, 2026

Uploaded on: 27

th

February, 2026

+ CRL.A. 1008/2025 & CRL.M.(BAIL) 1546/2025

JITENDER@BABU .....Appellant

Through: Ms. Indu Kaul, Mr. Abhishek Sahu &

Mr. Vikram Kaul, Advocates.

versus

STATE NCT OF DELHI .....Respondent

Through: Mr. Ritesh Kumar Bahri APP with

Ms. Divya Yadav & Mr. Lalit Luthra,

Advs. (M: 9999892015) with SI

Deepak Malik, Inspector Mukesh

Kumar PS Barakhamba Road. (M:

8130302556)

CORAM:

JUSTICE PRATHIBA M. SINGH

JUSTICE MADHU JAIN

JUDGMENT

MADHU JAIN, J.

1.The present criminal appeal is filed under Section 415(2) of Bharatiya

Nagarik Suraksha Sanhita, 2023 (hereinafter,‘BNSS’) by the Appellant

assailing the Impugned Judgement of conviction and order on sentence

dated 23

rd

April, 2025 and 26

th

April, 2025 respectively, passed by the ld.

ASJ-04, New Delhi District, Patiala House Courts, New Delhi, whereby the

Appellant has been convicted in Sessions Case No. 9097/2016, arising out of

FIR No. 54/2015, registered at P.S. Barakhamba Road under Section 302

CRL.A. 1008/2025 Page 2of 34

read with Section 34 of the Indian Penal Code, 1860 (hereinafter ‘IPC’),

holding as under:

“28. Since, both PW3 and PW6 have failed to

identify accused Saurav and Satish as the persons

who were present on the spot at the time of

incident and in the absence of any other

incriminating evidence against them, both

accused Saurav and Satish are acquitted for the

offence under S. 304/34 IPC.

CONCLUSION

The accused Sunny @ Babe and Jitender @ Babu

are convicted for the offence under S. 302/34

IPC. The accused Saurav and Satish are

acquitted for the offence under S. 304/34 IPC.”

2.By the Impugned Judgement of conviction and Order on Sentence, the

Appellant has been sentenced to undergo Simple Imprisonment along with a

fine of Rs. 20,000/-. In default of payment of the fine, he has been sentenced

to undergo Simple Imprisonment for a period of one year for the offence

punishable under Section 302 read with Section 34 of the IPC. The ld. Trial

court in the Order on Sentence held as under:

“b) Jitender @ Babu

The Convict is sentenced to Simple Imprisonment

for Life and fine of Rs. 20,000/- for the offence u/s

302 IPC. In default of payment of fine, the convict

to undergo SI for one year.”

FACTUAL MATRIX:

3.The present criminal appeal arises out of FIR No. 54/2015 registered

at Police Station Barakhamba Road, New Delhi, in relation to an incident

which occurred on the night of 19

th

May, 2015 at about 11:00 PM in the

CRL.A. 1008/2025 Page 3of 34

vicinity of Stall No. 42, Shankar Market, New Delhi, resulting in the death

of Biju Varghese, proprietor of Capital Express Courier. The prosecution

case, as recorded in the Impugned Judgement, is founded primarily on the

testimonies of two alleged eyewitnesses, namely PW-3 John Minj and PW-6

Vijender @ Bijender, both employees of the deceased.

4.As per the prosecution version accepted by the ld. Trial Court, PW-3

John Minj, while present at RML Hospital, met SI Chander Prakash (PW-

26) and made a statement alleging that on the date of the incident, he and

PW-6 Vijender were working as field boys at Capital Express Courier,

owned by the deceased Biju Varghese.

5.It was stated that at around 11:00 PM, after ordering food for his

employees, the deceased left the shop to return home. Within a few minutes

thereafter, noises were allegedly heard from outside the shop, upon which

PW-3 and PW-6 came down and saw four persons assaulting Biju Varghese.

One of the assailants was stated to have caught hold of the deceased by the

neck, while the others were beating him. According to PW-3, when he

attempted to intervene, he was pushed aside by one of the assailants

described as ‘fat boy’, who allegedly pulled the deceased to the ground and

exhorted others to bring a hammer or knife. During the assault, the said

assailant allegedly took the helmet of the deceased and struck him

repeatedly on the head.

6.It is further the prosecution case that PW-3 and PW-6, upon

witnessing the assault, ran towards SadarBazarto seek police assistance and

approached a PCR van. The PCR officials accompanied them back to the

spot, where the deceased was found lying in a pool of blood. The injured

was taken to RML Hospital in the PCR van, where he was declared brought

CRL.A. 1008/2025 Page 4of 34

dead. The victim was examined and an MLC bearing No. E/1100157/15 was

made. The relevant portion of the said MLC is reproduced hereinbelow:

“GENERAL EXAMINATION

(i) Pulse: Absent

(ii) BP: Absent

(iii) Respiration: Absent

(iv) Pupils: B/L fixed / dilated / non responding to

light

(v) Gait: —

(vi) Speech: Brought dead

SYSTEMIC EXAMINATION

(i) Chest: No breath sounds

(ii) CVS: No heart sounds

(iii) Abdomen: —

(iv) CNS: Brought dead

LOCAL EXAMINATION (AFFECTED

SYSTEM)

1.Nasal bleed present

2.Bilateral swelling of both eyes (Black eye)

3.Cut over left eyelid (L) 2 × 0.5 cm

4.Swelling on left temporal region of scalp

PROVISIONAL DIAGNOSIS

H/o assault.

Brought dead to casualty.

TREATMENT GIVEN

Admission in casualty under Incharge (A&E).

CAUSE OF DEATH

Cause of death not known.

To be ascertained after post-mortem exam.

NATURE OF INJURY

Simple / Grievous / Dangerous

(Dangerous appears indicated)

ARTICLES FOUND (UNCLAIMED CASES)

Following clothes seized

(jeans pant + shirt + belt

hand + sando vest)

CRL.A. 1008/2025 Page 5of 34

Handed over to I.O.

CASE HISTORY

Pt was brought by police with alleged h/o assault.

Pt became unconscious at spot allegedly.

At RML hospital patient was declared dead.”

XXX

“

”

7.On the basis of the statement of PW-3 and the MLC of the deceased,

FIR No. 54/2015 under Section 302/34 IPC was registered at about 01:30

AM on 20

th

May, 2015, and investigation was initially entrusted to SI

Chander Prakash (PW-26) and subsequently to Inspector Swadesh Kumar

(PW-27). During spot inspection, blood was found scattered at the place of

occurrence, and a damaged helmet and other articles were recovered. The

place of occurrence was preserved, photographed, and exhibits were seized.

CRL.A. 1008/2025 Page 6of 34

8.Post-mortem examination of the deceased was conducted on 20

th

May, 2015. The post-mortem report No. 233/2015, recorded 13 ante-mortem

injuries, primarily on the head and face, along with contusions on the chest.

The cause of death was opined to be the combined effect of multiple injuries

to the head and contusion on the heart and lungs consequent upon blunt

force impact, sufficient to cause death in the ordinary course of nature. A

subsequent opinion was obtained regarding the helmet alleged to be the

weapon of offence. The relevant portion of the said post-mortem report is

reproduced as under:

“External Injuries:

1.Contusion with swelling, bluish red in colour, of

size 4.5 × 4.5 cm, present over left parieto-

temporal region.

2.Abraded contusion, bluish red in colour, of size

3.5 × 3 cm, present over left side of forehead, 3 cm

above left supra-orbital margin.

3.Contusion, bluish red in colour, of size 4 × 3

cm, present over right side of forehead, 2.5 cm

above right supra-orbital margin.

4.Multiple lacerations varying in size from 0.1 ×

0.1 cm to 0.8 × 0.2 × 0.1 cm, with ragged margins,

present in on area of 2.5 × 2.2 cm over mid-

forehead, just above medial end of right supra-

orbital margin.

5.Contusion, bluish red in colour, of size 4.5 × 4

cm, present over right eye with sub-conjunctival

haemorrhage in underlying bulbar conjunctiva.

6.Contused lacerated wound with ragged margins,

of size 2 × 0.5 × 0.3 cm, present over left eye lid

and left mid-eyebrow. Lateral end of wound is

directed supero-laterally.

7.Contused lacerated wound with ragged margins,

CRL.A. 1008/2025 Page 7of 34

of size 1.8 × 0.2× 0.2 cm, present horizontally

oriented, inferior orbital margin of left eye.

8.Contused lacerated wound of size 1 × 5 × 0.2

cm, with ragged margins, present over right side of

root of nose.

9.Lacerated wound with ragged margins, of size 2

× 0.1 × 0.1 cm, present on right aspect of nose just

behind nasal ala.

10. Contused lacerated wound with ragged

margins, of size 1.2 × 0.5 × 0.2 cm, present on

inner aspect of mid right half of upper lip.

11. Contused lacerated wound of size 1 × 0.5

× 0.2 cm, with ragged margins, present on outer

aspect of mid right half of lower lip.

12. Contused lacerated wound with ragged

margins, of size 1.1 × 0.5 × 0.2 cm, present on

inner aspect of mid right half of lower lip.

13. Abraded contusion, bluish red in colour,

of size 4.5 × 4 cm, present on anterior aspect of

chin.

XXX

OPINION:

Cause of death: Death is due to combined effect of

multiple injuries to head and contusion on heart

and lung consequent upon blunt force impacts to

head and chest,which are collectively sufficient to

cause death in ordinary course of nature.All

injuries mentioned are antemortem in nature and

fresh in duration. However routine viscera has

been preserved to rule out any associated

intoxication.

Approximate time since death: About 12–18 hours

(body stored in cold storage prior to autopsy).”

9.On 21

st

May, 2015, information was received regarding the arrest of

CRL.A. 1008/2025 Page 8of 34

accused Sunny @ Babe in another matter by ATS, East District. During

interrogation, he allegedly disclosed his involvement in the present case. He

was thereafter arrested, produced in muffled face, and his Test Identification

Parade (hereinafter,‘TIP’) was fixed, which he refused. During police

custody remand, Sunny @ Babe allegedly made a disclosure statement

naming Satish @ Babbu, Saurav @ Gunga, and Jitender @ Babu (the

present Appellant) as co-assailants.

10.On the basis of the disclosure statement, the present Appellant

Jitender @ Babu, along with co-accused Satish and Saurav, were arrested on

27

th

May, 2015 from Ramleela Grounds, as per the prosecution. The

Appellant refused to participate in TIP proceedings. During TIP of co-

accused Satish and Saurav, they were not identified by PW-3 or PW-6.

However, the prosecution claimed that PW-3 and PW-6 subsequently

identified the Appellant Jitender @ Babu as the person who had caught hold

of the deceased by the neck.

11.Upon completion of the investigation, a charge-sheet was filed under

Section 302/34 IPC. Cognizance was taken on 24

th

August,2015, and the

case was committed to the Sessions Court. Initially, charges under Section

302 IPC were framed against Sunny @ Babe, while charges under Section

304 Part I & II read with Section 34 IPC were framed against the present

Appellant and the other co-accused. The prosecution later moved an

application under Section 216 Code Of Criminal Procedure (hereinafter,

‘CrPC’) seeking an alteration of charge against the Appellant to Section

302/34 IPC, which remained pending for several years and was ultimately

allowed on 31

st

May, 2024, at a stage when prosecution evidence was

nearing conclusion. The ld. Trial court in the order dated 31

st

May, 2024

CRL.A. 1008/2025 Page 9of 34

held as under:

“Today, the matter is fixed for consideration on the

application u/s 216 Cr.P.C. filed on behalf of the

Ld. Addl. PP for the State dated 20.07.2016. The

application has been filed seeking alteration /

addition of charge for the offence u/s 302/34 IPC

against accused Jitender, Saurabh and Satish.

XXX

Per contra, the application is vehemently opposed

by Ld. Counsel for accused Jitender that no ground

is made out for alteration of charge. All the

allegations including the specific allegations as

pointed out by Ld. Addl. PP for the State, have

been duly discussed by the Ld. Predecessor in the

order dated 21.11.2015.The Ld. Predecessor after

considering the specific role of accused Jitender

as alleged by the witnesses u/s 161 Cr.P.C. had

framed charge for the offence u/s 304-I/304-II/34

IPC against accused Jitneder alongwith co-

accused Satish Kumar and Saurabh Chouhan.

Heard Ld. Addl. PP for the State, Ld. Defence

Counsel for accused Jitender and perused the

record file.

XXX

The Ld. Addl. PP for the State has sought

alteration / addition of the charge u/s 302/34 IPC.

On perusal of testimony of PW-3 and PW-6 and

the post-mortem report, such addition of the

charge u/s 302/34 IPC is deemed necessary

despite the fact that the trial has begun and is at

the fag end in light of the evidence presented

before the court.

Accordingly, the application u/s 216 Cr.P.C. filed

by the Ld. Addl. PP seeking amendment /

alteration of the charge against accused Jitender

for the offence u/s 302/34 IPC is allowed.

CRL.A. 1008/2025 Page 10of 34

Accordingly, the amended charge u/s 302/34 IPC

framed against accused Jitender to which he

pleaded not guilty and claimed trial.

It is submitted by the Ld. Addl. PP for the State

that he does not want to recall or examine any

witness with respect to the amendment in the

charge. It is submitted by the Ld. Defence Counsel

that she wants to cross-examine PW-3 and PW-6

and seeks permission of the court to resummon

these witnesses. Let PW-3 and PW-6 be re-

summoned for cross-examination on the limited

aspect with respect to the amended charge framed

against accused Jitender, subject to their

availability.”

12.During trial, the prosecution examined 29 witnesses. The ld. Trial

Court treated PW-3 John Minj and PW-6 Vijender as the star witnesses,

holding them to be eyewitnesses to the incident. The remaining witnesses

comprised of police officials, medical experts, forensic witnesses, and

formal witnesses. Notably, no independent public witness from the crowded

Shankar Market area were examined, despite PW-3 admitting the presence

of several persons at the spot. The relevant medical opinion given by PW-2

and PW- 24, as recorded by the ld. Trial court is reproduced hereinbelow:

“B. PW-2 Dr. Rahul Band and PW24 Dr.

Sukhdeep Singh

These witnesses proved the postmortem report of

the deceased Biju Varghese as Ex.PW2/A. They

deposed that there were a lot of external injuries

found on the body of the deceased as detailed in

the report Ex.PW2/A. The cause of death was

combined effect of multiple injuries to head and

contusion on heart and lungs consequent upon

blunt force impact to head and chest which are

CRL.A. 1008/2025 Page 11of 34

collectively sufficient in ordinary course of nature

to cause death. All the injuries were ante-mortem

in nature and fresh in duration.

They further deposed that they received the

weapon of offence i.e. one black helmet for

subsequent opinion. They gave their subsequent

opinion as Ex.PW2/B.

PW24 during his cross-examination deposed that

out of 13 injuries, all the injuries except injury no.

4 are possible by the use of helmet. No single

injury mentioned by him is responsible for the

death of deceased, but the death was the result of

combined effect of the aforesaid injuries. The

injuries referred except injury no. 4 can be

possible by fist as it also cause blunt force. Injury

no. 4 is a light laceration and can be caused by the

use of nails. The scratches seen on the helmet

produced by the 10 could be possible due to wear

and tear.”

13.The relevant statements of PW- 3 and PW- 6 are reproduced

hereinbelow:

“PW-3 John Minj

28.03.2016

PW 3 JOHN MINJ, S/O LATE SIMON MINJ,

R/O - HOUSE OF SARPANCH, CHLLLA

VILLAGE, MAYUR VIHAR, DELHI. AGED

ABOUT 40 YEARS, EMPLOYED IN COURIER

COMPANY.

On SA

I am residing on the second floor of the house of

the Sarpanch In Mayur Vihar. I am employed with

Capital Express Couriers at Stall no. 42, Shankar

Market, Delhi for the last about 5 years. Apart

from me one Bijender was also employed and the

CRL.A. 1008/2025 Page 12of 34

owner of the said courier company was Biju

Verghese. I and Bijender were working as field

boys in the courier company.

On 19.05.2015 at about 10:15 - 10 :30 PM I along

with Bijender and deceased Biju were working in

the courier company. At about 10:00 PM I was

asked by Biju Verghese to bring food from the near

by Dhabha and Biju Verghese was getting down

from the office. After about 5 minutes when I

came down stairs from the office which was

situated on the first floor of stall no. 42 then I saw

three four persons had caught hold of Biju

Verghese and were beating him. I tried to

Intervene In the situation then accused Sunny

pushed me. Accused Sunny said that today "Biju

Verghese ka kaam tamam kar denge". Accused

Sunny asked the other co-accused persons to

bring a hammer and knife. Accused Jitender had

caught hold of Biju Verghese from the neck from

behind. Accused Sunny picked up the helmet

which was kept on the motorcycle of deceased

Biju Verghese and struck the helmet repeatedly

on the head of Biju Verghese. I was frightened

and I went near the super bazar where a PGR van

met us and they arrived with me to the spot and

deceased Biju Verghese was picked up from the

spot and was taken to RML Hospital. After

examination of Biju Verghese in the hospital he

was declared brought dead. 10 recorded my

statement in RML Hospital Ex.PW3/A signed by me

at point A. There were two other co-accused who

were also beating Biju Verghese but I could not

identify them. Accused Sunny, Jitender, Saurav and

Satish are present before the court today however,

I do not know whether accused Saurav and Satish

were present at the time of incident or not. I have

shown the place of occurrence to the police. I had

also gone to Tihar Jail for the purpose of TIP but

CRL.A. 1008/2025 Page 13of 34

Jitender and Sunny refused for their TIP. I had not

identified any person who was put to TIP.

Prior to the present incident about 1(½) - 2 years

ago one person had come to the office of Biju

Verghese and demanded money and that person

had told Biju Verghese that Sunny had sent him.

The witness states that he remembers now and the

person was accused Saurav present before the

court today. Biju Verghese had replied that he did

not have money at that time and that he will pay it

later on.

XXX

12.07.2016

PW 3 John Minj recalled for further examination

in chief resumed after lunch

XXX

XXX by Sh. S.Q. Kasim, Ld. Counsel for accused

Sunny @ Babe.

….I remained at the place of occurrence for

around 7- 8 minutes. There were many persons at

the place of occurrence but I do not know them.

There were 8-10 more persons other than me at the

place of occurrence. I could not retain the identity

of the persons present at the place of occurrence. I

intervened in between the assailants and the

deceased.The accused persons have not beaten O

me with a helmet. Only one accused was having

the helmet. Three other assailants were not

having any other thing in their hands. The three

assailants were without any weapon of assault

except the one who was Sunny @ Babe who was

holding the helmet.I have categorically stated the

identity, brand, colour of the helmet which the

accused Sunny @ Babe was holding to the

investigating officer in my statement Ex.PW3/A

and when the helmet was seized by the 10 I have

confirmed the helmet to have been the same which

was used by accused Sunny @ Babe and I have

CRL.A. 1008/2025 Page 14of 34

also put signatures on the seizure memo which

was…

XXX

PW- 6 Vijender @ Bijender

09.09.2016

PW 6 Sh. Vljender @ Bijender, S/o Sh. Laturl Lai

Singh, R/o Village Maharajpur, PS - Narkey,

District - Firozabad. Presently : House No. 82,

Chatarsal Colony, Mewla Maharajpur,

Faridabad.

On SA

XXX

……I do not know ,other persons. There were a

number of persons from courier staff. I called

them but they did not come, I along with John

went to call the police and one police gypsy was

found near Super Bazar and I told the police that

someone is beating my owner and they should

come fast.Thereafter, police came there, 1 and

John also rushed by foot by different road than that

of the police van and when we saw that the police

van was moving ahead of the spot, we became

anxious. John had also told me that "Malik ko

Maar Dala". Immediately, I went to Pahargunj to

get help_from Biju Verghese's friend Chandran

and I informed him that "Kisi ne Malik ko Maar

dia". I had also telephoned two friends of Biju

Verghese namely Nand Kumar and another Biju

Verghese having mobile numbers of 9310114048

and 9582797001 respectively from the mobile of

Chandran.

XXX

24.11.2016

PW 6 Sh. Vijender @ Bijender recalled for his

examination in chief which was deferred on

09.09.2016.

On SA

At this stage request is made to cross-examine the

CRL.A. 1008/2025 Page 15of 34

witness as he not disclosing complete facts.

Heard. Allowed.

XXXX by Ld. Additional PP for State

XXX

Statement Ex. PW6/B from point A to A 1 is read

over to the witness and he denies having made any

such statement to the police. It is wrong to suggest

that in the month of February, 2015 while I along

with Biju Verghese and John Minj were working at

Stall no. 42, Capital Express Courier office at

around 09:00 to 09:30 PM. Accused Sunny Babe

came to office and told Biju Verghese that if he had

to run office there, he will have to pay rupees and

Biju Verghese refused to pay rupees to Sunny Babe

and thereafter, Sunny Babe became angry and

abused Biju Verghese. It is wrong to suggest that

thereafter, Sunny Babe threatened Biju Verghese

that he will face consequences. Confronted with

statement Ex. PW6/C wherein it is so recorded.

Statement dt 07.08.2015 which is Ex.PW6/D is

read over to the witness from point A to A 1 and he

denies having made any such statement to the

police. 1 had stated qua the identification of the

accused Sunny Babe and Jitender, but I have not

told about Saurav Chahuan and Satish Kumar.

Confronted with statement Ex.PW6/D from point A

to A1 wherein it so recorded. It is wrong to suggest

that as I have been won over by the accused

persons that is why I have not admitted the

contents of statement Ex.PW6/A to Ex. PW6/D

from point A to A1. It is wrong to suggest that I

have deliberately not identified accused Saurabh

Chauhan and Satish Kumar in the court.

XXX

At this stage, attention of witness is drawn

towards Saurabh and Satish present in the court

today. but he fails to identify them as the

assailants. It is wrong to suggest that 1 have

CRL.A. 1008/2025 Page 16of 34

deliberately not identifying accused Saurabh

Chauhan and Satish Kumar in the court.”

14.After recording statements of the all the Accused persons under

Section 313 CrPC, the ld. Trial Court,videthe Impugned Judgement,

convicted Sunny @ Babe and the present Appellant Jitender @ Babu under

Section 302/34 IPC, while acquitting co-accused Satish and Saurav for want

of identification and incriminating evidence. The conviction of the

Appellant was primarily founded on the testimony of PW-3 and PW-6, read

with the medical evidence and the alleged role attributed to him of holding

the deceased by the neck during the assault.

SUBMISSIONS ON BEHALF OF THE APPELLANT:

15.The learned counsel for the Appellant submits that at the outset the

medical evidence does not disclose any injury on the neck of the deceased.

The post-mortem report enumerates thirteen external injuries, all of which

are confined to the head, face, chin and chest region. There is no laceration,

contusion, fracture, or internal injury attributable to compression,

strangulation, or force applied to the neck. In the absence of any

corroborative medical evidence, the allegation that the Appellant “caught

hold of the neck” of the deceased remains unsubstantiated and unsupported

by objective findings. The ld. Trial Court, it is submitted, erred in treating

this allegation as determinative without reconciling it with the absence of

corresponding injuries.

16.The learned counsel further submits that there is no material on record

CRL.A. 1008/2025 Page 17of 34

to establish any prior connection between the Appellant and the deceased, or

between the Appellant and the alleged incident, except the bare oral

assertion of PW-3 and PW-6. The Appellant was neither known to the

deceased nor shown to have any prior interaction, dispute, or motive. No

independent witness, documentary evidence, or circumstantial link connects

the Appellant with the deceased prior to the incident. In such circumstances,

the prosecution was required to establish the Appellant’s culpability through

cogent and unimpeachable evidence, which it has failed to do.

17.The learned counsel also submits that mere presence at the spot, even

if assumed, does notipso factoestablish either intention or guilt. The

Impugned Judgment proceeds on the premise that the Appellant’s alleged

act of holding the neck automatically attracts common intention under

Section 34 IPC. The learned counsel submits that this approach overlooks

settled law that common intention cannot be inferred mechanically and must

be established through clear evidence of a shared mental state. In the present

case, the overt act attributed to the Appellant is passive in nature and is not

accompanied by any use of weapon, exhortation, or infliction of injury. The

prosecution has not established that the Appellant shared either the intention

to cause death or the knowledge that death was likely to ensue.

18.The learned counsel for the Appellant also places reliance on the

medical opinion itself, which clearly states that the use of a helmet as a

weapon is only apossibilityand not a definitive conclusion. PW-24, during

cross-examination, categorically deposed that except injury no. 4, all injuries

arepossibleby the use of a helmet and that the injuries could also be caused

by fist blows, which are blunt force in nature. The doctor further stated that

no single injury was sufficient to cause death and that death resulted from

CRL.A. 1008/2025 Page 18of 34

the combined effect of injuries. It is submitted that where medical opinion is

expressed in terms of possibility rather than certainty, the benefit of doubt

must necessarily enure to the accused, particularly one who is not alleged to

have wielded the weapon.

19.It is further contended that the Appellant neither knew the deceased

nor had any prior association with him. In the absence of such knowledge,

the attribution of intention or even constructive knowledge becomes legally

untenable. The prosecution has not established that the Appellant was aware

of the vulnerability of the deceased, the severity of the injuries being

inflicted, or the likelihood of fatal outcome. The Impugned Judgment

proceeds on hindsight reasoning rather than contemporaneous assessment of

the Appellant’s mental state at the time of the incident.

20.The learned counsel further submits that the evidentiary value of PW-

6 is substantially diluted, as his testimony was not effectively tested through

proper cross-examination on crucial aspects relating to the Appellant’s role.

Despite inconsistencies in PW-6’s narration regarding the number of

assailants, sequence of events, and his own presence at the scene, the ld.

Trial Court treated his testimony as unimpeachable. It is submitted that

failure to subject such testimony to rigorous scrutiny has resulted in grave

prejudice to the Appellant.

21.It is further submitted that the investigation suffers from serious

forensic lapses. No blood sample was sent for serological examination to

establish linkage between the alleged weapon and the deceased. Even the

helmet, which forms the backbone of the prosecution case, was not

subjected to proper forensic testing to conclusively connect it with the

crime. The Investigating Officer himself admitted that the helmet was not

CRL.A. 1008/2025 Page 19of 34

sent for serological examination and that no effort was made to investigate

crucial corroborative aspects. These lapses assume greater significance when

the Appellant is not alleged to have used the helmet at all.

22.The learned counsel further draws attention to the testimony of PW-

24, who clearly stated that all injuries were not necessarily caused by the

helmet alone and that blunt force such as fist blows could also result in

similar injuries. This medical testimony directly contradicts the inference

drawn by the ld. Trial Court that the Appellant’s alleged act necessarily

contributed to the fatal outcome. In the absence of specific injuries

attributable to the Appellant, the finding of shared intention becomes legally

unsustainable.

SUBMISSIONS ON BEHALF OF THE STATE:

23.Per contra,Mr. Bahri, the ld. APP for State submits that the presence

of the Appellant at the site of occurrence stands firmly established through

the consistent and corroborative testimonies of PW-3 John Minj and PW-6

Vijender @ Bijender, who were natural witnesses being employees of the

deceased and present at the place of occurrence immediately prior to and

during the incident. Their presence is further corroborated by PW-13 ASI

Rameshwar, who deposed that it was PW-3 John Minj who informed the

PCR about the assault and accompanied the PCR van to the spot and

thereafter to the hospital. The ld. Trial Court, in the Impugned Judgment,

has specifically recorded a finding that PW-3 and PW-6 were present at the

spot and had witnessed the incident, and that their testimonies inspire

confidence.

CRL.A. 1008/2025 Page 20of 34

24.The learned APP further submits that the role of the Appellant

Jitender @ Babu is clearly delineated in the ocular testimony. PW-3 John

Minj has categorically deposed that the Appellant caught hold of the

deceased Biju Varghese from the neck from behind, while the co-accused

Sunny @ Babe inflicted repeated blows on the head of the deceased using

the helmet. PW-6 Vijender has also corroborated this version by deposing

that he saw one assailant holding the deceased by the neck while the other

was assaulting him. The ld. Trial Court has, after detailed analysis,

concluded that the act of holding the deceased by the neck facilitated the

infliction of fatal injuries and constituted active participation in the assault.

25.The learned APP submits that the Appellant’s refusal to participate in

the TIP is a relevant circumstance which the ld. Trial Court has rightly taken

into account. The refusal of TIP by the Appellant, coupled with his

subsequent identification in Court by PW-3 and PW-6, lends assurance to

the prosecution case. The ld. Trial Court has observed that the refusal of

TIP, when viewed in the context of consistent ocular testimony, strengthens

the prosecution’s version rather than weakening it.

26.The learned APP further submits that the recovery and forensic

examination of the helmet, which has been established as the weapon of

offence, is a crucial circumstance against the accused. The helmet was

recovered from the spot of occurrence and was identified by PW-3 as

belonging to the deceased and as the same helmet with which repeated

blows were inflicted. As per the biological and serological reports proved by

PW-29, blood of human origin was found on the helmet. The ld. Trial Court

has correctly held that the presence of human blood on the helmet

corroborates the ocular version and the medical evidence, and that the

CRL.A. 1008/2025 Page 21of 34

absence of DNA profiling does not dilute the evidentiary value of this

recovery, particularly when the use of the helmet has been proved through

direct testimony.

27.He further submits that the medical evidence fully supports the

prosecution case. The post-mortem report and the subsequent medical

opinion establish that the deceased suffered thirteen ante-mortem injuries,

predominantly on vital parts such as the head, face and chest, and that the

cause of death was the combined effect of multiple blunt force injuries. The

doctors have opined that the injuries were sufficient in the ordinary course

of nature to cause death and were consistent with the use of a helmet as the

weapon of offence. The ld. Trial Court, has clearly recorded that the medical

evidence conclusively links the assault to the fatal outcome.

28.The learned APP also submits that the argument raised on behalf of

the Appellant regarding alleged inconsistencies in the testimonies of PW-3

and PW-6 has been duly considered and rejected by the ld. Trial Court. In

paragraph 15 of the Impugned Judgment, the ld. Trial Court has recorded

detailed reasons for holding that the so-called contradictions are minor,

natural, and do not go to the root of the prosecution case. It has been

correctly observed that the core of the prosecution story, being the presence

of the accused, the manner of assault, and the specific role attributed to each

assailant, has remained consistent throughout the statements of the

witnesses.

29.The learned APP submits that the ld. Trial Court has correctly applied

the principles governing common intention under Section 34 IPC. The

Appellant’s act of restraining the deceased by holding his neck enabled the

principal assailant to inflict repeated and forceful blows on the head and face

CRL.A. 1008/2025 Page 22of 34

of the deceased. Such conduct, when viewed in totality, clearly establishes

participation in furtherance of the common intention to cause such bodily

injury as was sufficient in the ordinary course of nature to cause death.

ANALYSIS AND FINDINGS:

30.The Court has considered the matter.

31.Before proceeding to examine the legal question arising in the present

appeal, it would be apposite to briefly recapitulate the substance of the

evidence relied upon by the prosecution. PW-2 Dr. Rahul Band and PW-24

Dr. Sukhdeep Singh proved the post-mortem report Ex. PW2/A, which

records thirteen ante-mortem injuries on the person of the deceased Biju

Varghese, predominantly on the head and face, along with contusions to the

heart and lungs. The cause of death was opined to be the combined effect of

blunt force impacts to the head and chest, sufficient in the ordinary course of

nature to cause death. In cross-examination, PW-24 clarified that no single

injury was independently fatal and that, except injury no. 4, the injuries were

possible not only by a helmet but also by fist blows. He further stated that

injury no. 4 could be caused by nails and that no fibre or plastic residue was

found on the body.

32.The ocular version primarily rests on PW-3 John Minj and PW-6

Vijender @ Bijender, both employees of the deceased. PW-3 deposed that

upon hearing noise, he saw accused Sunny @ Babe striking the deceased

repeatedly with a helmet, while the present Appellant Jitender @ Babu

allegedly caught hold of the deceased from behind by the neck. He further

stated that Sunny uttered threatening words and asked others to bring a

CRL.A. 1008/2025 Page 23of 34

hammer and knife. PW-6 broadly corroborated the version that Sunny @

Babe assaulted the deceased and that the Appellant held him by the neck.

However, both witnesses, during cross-examination, made certain

clarifications regarding the number of assailants, their ability to identify co-

accused persons, and aspects of their earlier statements under Section 161

Cr.P.C. The prosecution case, therefore, attributes to the Appellant a role of

restraint, while the fatal blows are alleged to have been inflicted by co-

accused Sunny @ Babe.

33.At the outset, the homicidal nature of the death of Biju Varghese is

not in dispute. The post-mortem report No. 233/2015, duly proved through

PW-2 Dr. Rahul Band and PW-24 Dr. Sukhdeep Singh, establishes beyond

doubt that the deceased sustained thirteen ante-mortem injuries,

predominantly on the head and face, along with contusions to the heart and

lungs, and that death occurred due to the combined effect of blunt force

impacts sufficient to cause death in the ordinary course of nature. The said

post-mortem report has been reproduced above.

34.The conviction of the Appellant does not rest on medical evidence

alone but primarily on the testimonies of PW-3 John Minj and PW-6

Vijender @ Bijender, both employees of the deceased. The ld. Trial Court

has accepted their presence at the spot and treated them as eyewitnesses. For

the purposes of the present appeal, this Court does not find it necessary to

reopen the issue of their presence, as the appeal does not hinge on total

absence of evidence but on the nature and degree of culpability attributable

to the Appellant.

35.The central issue that arises for determination is whether the role

attributed to the Appellant, even if accepted at its highest, satisfies the legal

CRL.A. 1008/2025 Page 24of 34

threshold for murder punishable under Section 302 IPC read with Section 34

IPC, or whether it falls within the domain of culpable homicide not

amounting to murder.

36.The prosecution case, as accepted by the ld. Trial Court, attributes a

specific and limited role to the Appellant, namely, that he caught hold of the

deceased by the neck from behind, while the co-accused Sunny @ Babe

inflicted repeated blows on the head and face of the deceased using a

helmet. The ld. Trial court held as under:

“25. In the present case, the accused Sunny @

Babe inflicted multiple injuries on the head and

face of deceased Biju Varghese with the helmet

while co-accusedJitender @ Babu had caught

hold of him from his neck.The accused Sunny @

Babe also gave leg and fist blows to the deceased

on his other parts of the body. As discussed above,

the deceased suffered 13 external injuries and the

cause of death .was combined effect of multiple

injuries to head and contusion on heart and lungs

consequent upon blunt force impact to head and

chest which are collectively sufficient in ordinary

course of nature to cause death. The fatal nature

of these injuries, as confirmed by medical

evidence, and the circumstances of the attack

clearly point to an intent to cause death or at least

an intention to inflict injuries with the knowledge

that they were likely to result in death. Even, if, it

is presumed that the accused Sunny @ Babe and

Jitender @ Babu did not have an intention to

cause such bodily injury, the act of causing

multiple injuries on the head, face & chest with

the helmet; with leg & fist blows and co-accused

Jitender holding the neck of deceased during the

said act, is reflective of the knowledge that

CRL.A. 1008/2025 Page 25of 34

causing such injuries is likely to cause death in

the ordinary course of nature.”

37.A careful scrutiny of the medical evidence, however, reveals an

important incongruity. The post-mortem report details thirteen external

injuries, all confined to the head, face, chin and chest. There is no injury

whatsoever on the neck, no contusion, abrasion, laceration, fracture, internal

hemorrhage, or any indication of compression or strangulation. This absence

is not a minor omission but a material circumstance, particularly because the

act of holding the neck has been treated by the Trial Court as the

foundational basis for invoking common intention against the Appellant.

38.PW-24, during his cross-examination, has categorically stated that no

single injury was sufficient to cause death and that death was the result of

the combined effect of injuries. He further stated that, except injury no. 4, all

injuries could be caused by blunt force, including fist blows, and that the use

of a helmet was a possibility rather than a medical certainty. The statement

made by PW-24 in his cross-examination is reproduced hereinbelow:

“In my report, it is not mentioned that any fiber or

plastic material was found inside the dead body or

on the surface of the body of deceased.Out of 13

injuries, mentioned by me above, except injury

No.4, all are possible by the use of helmet.No

single injury mentioned by me is responsible for

the death of the deceased but the death was the

result of combined effect of the aforesaid injuries.

The injuries referred to above by me, except No.

4, can be possible by fist as it also cause blunt

force. Injury No.4 is a light laceration and can be

caused by the use of nails. The scratches seen by

CRL.A. 1008/2025 Page 26of 34

me in the helmet, produced by the 10 before me,

could be possible due to wear and tear.”

39.This medical opinion assumes significance because the Appellant is

not alleged to have wielded the helmet or inflicted any blow. His alleged act

is one of restraint, not assault. Where such an act is relied upon to elevate

culpability to murder, the absence of medical corroboration weakens the

inference sought to be drawn.

40.The ld. Trial Court, while acknowledging that even in the absence of

intention, knowledge would suffice to sustain a conviction under Section

302 IPC, proceeded to hold that the act of restraining the deceased by the

neck, coupled with the assault by the co-accused, reflected both intention

and knowledge. With respect, this Court finds that such a conclusion

confuses the distinct mental elements without adequately examining whether

the Appellant shared the requisite intention to cause death or such bodily

injury as was sufficient in the ordinary course of nature to cause death.

41.The prosecution case itself portrays the incident as sudden, occurring

late at night, outside a commercial establishment, without any evidence of

prior planning, preparation or premeditation. There is no material to suggest

prior acquaintance or animosity between the Appellant and the deceased.

The Appellant is not shown to have exhorted the principal assailant, brought

any weapon, or directed the course of the assault. The exhortation to bring a

hammer or knife is attributed exclusively to Sunny @ Babe, not to the

Appellant. The relevant portion of the statement given by the PW-3 and PW-

6 are hereinbelow:

CRL.A. 1008/2025 Page 27of 34

“PW-5: After about 5 minutes when I came down

stairs from the office which was situated on the

first floor of stall no. 42 then I saw three four

persons had caught hold of Biju Verghese and

were beating him. I tried to Intervene In the

situation then accused Sunny pushed me. Accused

Sunny said that today "Biju Verghese ka kaam

tamam kar denge". Accused Sunny asked the other

co-accused persons to bring a hammer and knife.

Accused Jitender had caught hold of Biju Verghese

from the neck from behind. Accused Sunny up the

helmet which was kept on the motorcycle of

deceased Biju Verghese and struck the helmet

repeatedly on the head of Biju Verghese.

XXX

Prior to the present incident about 1(½) - 2 years

ago one person had come to the office of Biju

Verghese and demanded money and that person

had told Biju Verghese that Sunny had sent him.

The witness states that he remembers now and the

person was accused Saurav present before the

court today. Biju Verghese had replied that he did

not have money at that time and that he will pay it

later on.

XXX

The accused persons have not beaten me with a

helmet. Only one accused was having the helmet.

Three other assailants were not having any other

thing in their hands. The three assailants were

without any weapon of assault except the one who

was Sunny @ Babe who was holding the helmet.

XXX

PW- 6 statement: I do not know, other persons.

There were a number of persons from courier staff.

I called them but they did not come, I along with

John went to call the police and one police gypsy

was found near Super Bazar and I told the police

that someone is beating my owner and they should

CRL.A. 1008/2025 Page 28of 34

come fast.”

42.The conduct attributed to the Appellant, even if accepted, is thus

facilitative rather than determinative. While such conduct cannot be brushed

aside as innocuous, it must be assessed with circumspection when

determining whether it evidences a shared intention to commit murder.

43.The law is well settled that the distinction between murder and

culpable homicide turns primarily on the degree of intention. Knowledge

that death is likely is not synonymous with intention to cause death. The

Supreme Court has repeatedly cautioned against mechanically elevating

cases of group assault to murder merely on account of fatal outcome,

without a careful examination of the mental element attributable to each

participant.

44.InVirsa Singh v. State of Punjab,AIR 1958 SC 465.,the Supreme

Court clarified that for clause three of Section 300 to apply, the prosecution

must establish not only the existence of a bodily injury sufficient to cause

death in the ordinary course of nature, but also the intention to inflict that

very injury. In cases where such intention is absent, though knowledge may

be present, the offence would ordinarily fall under Section 304 Part I IPC.

45.Similarly, inSudam Prabhakar Achat v. State of Maharashtra,2025

SCC OnLine SC 602.,the Supreme Court held that where an assault occurs

suddenly, without premeditation, and the accused does not take undue

advantage or act in a cruel or unusual manner, the case would fall within

culpable homicide not amounting to murder, even if the accused can be

attributed with knowledge that death was a likely consequence. The

Supreme Court held that:

CRL.A. 1008/2025 Page 29of 34

“12. From the evidence of the prosecution

witnesses itself, it is clear that the place of incident

is near the house of accused persons. The

possibility of a quarrel taking place on account of

previous enmity between the accused persons and

the deceased; andin a sudden fight in the heat of

the moment, the appellant along with the co-

accused assaulting the deceased cannot be ruled

out. It can further be seen that the weapons used

are a stick and the blunt side of the axe. These

tools are easily available in any agricultural field.

It therefore cannot be said that there was any

premeditation.

13. It is further to be noted that the appellant is

alleged to have used the stick whereas the co-

accused is said to have used the blunt side of the

axe. If their intention was to kill the deceased,

there was no reason as to why the co-accused

would not have used the sharp side of the axe.

The nature of injury and the evidence of the

prosecution witnesses would also not show that

the appellant had taken undue advantage or acted

in a cruel manner.

14. In that view of the matter, we find that the

present case would not fall under the ambit of

Section 302 of IPC and the appellant would be

entitled to benefit of Exception IV of Section 300 of

IPC. It is further to be noted that the appellant has

already undergone the sentence of 6 years 10

months.

15. We are therefore inclined to partly allow the

appeal. In the result, we pass the following order:

(i) The appeal is partly allowed;

(ii) The conviction under Section 302 IPC is

converted to Part I of Section 304 IPC;

(iii) The appellant is sentenced to the period

already undergone; and (iv) The appellant is

CRL.A. 1008/2025 Page 30of 34

directed to be released forthwith if not required in

any other case.”

46.Applying these principles to the present case, this Court is of the

considered view that while the Appellant must be attributed with knowledge

that restraining a person during a violent assault on vital parts could result in

serious harm, the evidence on record does not establish beyond reasonable

doubt that he acted with the intention to cause death, or to cause such bodily

injury as was sufficient in the ordinary course of nature to cause death.

47.The reasoning of the ld. Trial Court itself, as reflected in para 25 of

the impugned judgment, acknowledges that even if intention is presumed

absent, knowledge would suffice. This reasoning, in effect, places the case at

the threshold between Sections 302 and 304 IPC. In such a situation,

particularly where the role attributed is secondary and non-weaponised, the

law mandates a cautious and nuanced classification.

48.The invocation of Section 34 IPC also warrants careful scrutiny.

Common intention cannot be inferred merely from simultaneous presence or

from a single act of restraint, unless the evidence clearly establishes a prior

meeting of minds or a shared mental design. The delayed alteration of

charge against the Appellant from Section 304 IPC to Section 302/34 IPC at

the fag end of the trial further underscores the need for circumspection,

though this Court refrains from resting its conclusion solely on that aspect.

49.The manner in which common intention has been inferred against the

Appellant also requires to be tested against the principles laid down by the

Supreme Court inChellappa v. State, (2020) 5 SCC 160. In the said

decision, the Supreme Court categorically held that Section 34 IPC is not a

CRL.A. 1008/2025 Page 31of 34

substantive offence and that before fastening vicarious liability, the

prosecution must establish, by cogent evidence, the existence of a shared

intention to commit the crime. The Court further cautioned that such

common intention cannot be presumed merely from the presence of the

accused or from a subsidiary or facilitative role attributed to him, and that

where doubt exists as to whether the accused shared the intention of the

principal assailant, such doubt must necessarily enure to the benefit of the

accused. The Supreme court in the said case held as under:

“9. It must be noted that Section 34 IPC is not a

substantive offence. Before a person can be held

responsible under this section, it must be

established that there was a common intention

and the person being sought to be held liable

must have participated in some manner in the act

constituting the offence. The common intention

shared by the accused should be anterior in time to

the commission of the offence, but may develop on

the spot when the crime is committed (see Virendra

Singh v. State of M.P. [Virendra Singh v. State of

M.P., (2010) 8 SCC 407 : (2010) 3 SCC (Cri) 893]

). However, from a perusal of the impugned High

Court judgment [Kennady v. State, Criminal

Appeal (MD) No. 1 of 2006, order dated 19-12-

2007 (Mad)] , as well as the submissions of the

prosecution, it is clear that no reasoning or

evidence has been advanced as to the fulfilment of

the requirements for the conviction of the

appellant-accused under Section 34 IPC in the

present case.

10. Further, a perusal of the circumstantial

evidence in the case does not clearly indicate that

the appellant-accused had common intention with

the main accused to kill the deceased. In fact, from

CRL.A. 1008/2025 Page 32of 34

the statement of PW 2, it is clear that at the time of

the incident the main accused was the only person

who reacted to the words of the deceased and his

family members asking them to make way, and

stabbed the deceased in the spur of the moment. As

such, when some doubt exists as to the common

intention animating the appellant-accused, the

same must inure to the benefit of the appellant-

accused.”

50.On a cumulative assessment of the ocular testimony, the medical

evidence, the absence of neck injuries, the limited role attributed to the

Appellant, and the governing legal principles, this Court is of the view that

the offence committed by the Appellant is one of culpable homicide not

amounting to murder.

51.Accordingly, the conviction of the Appellant Jitender @ Babu under

Section 302 read with Section 34 IPC cannot be sustained. The same is

liable to be altered to a conviction under Section 304 Part I IPC. The appeal,

to the aforesaid extent, deserves to be allowed.

52.Upon an overall consideration of the material on record and for the

reasons recorded in the preceding analysis, this Court is of the view that the

conviction recorded against the Appellant cannot be sustained in its present

form.

53.The Impugned Judgment of conviction dated 23

rd

April, 2025 and the

order on sentence dated 26

th

April, 2025, passed by the ld. Trial court insofar

as they relate to the Appellant Jitender @ Babu, are accordingly modified.

54.Having regard to the nature of the act attributed to the Appellant, the

absence of premeditation, the limited and non-weaponised role assigned to

him, and the medical evidence on record, this Court holds that the offence

CRL.A. 1008/2025 Page 33of 34

committed by the Appellant falls within the ambit of culpable homicide not

amounting to murder.

55.The Appellant is therefore convicted for the offence punishable under

Section 304 Part I IPC, as the material on record establishes that the

Appellant had the knowledge but no shared intention to cause such bodily

injury likely to result in death.

56.While determining the appropriate sentence, this Court has taken into

consideration the overall facts and circumstances of the case, including the

role attributed to the Appellant, the manner in which the incident occurred,

and the fact that the fatal blows were inflicted by the co-accused.

57.This Court has also taken note of the latest Nominal Roll, which

reflects that the Appellant has undergone actual incarceration for a period of

4 years, 7 months, and 16 days as on 30

th

August, 2025.

58.In the considered view of this Court, the period of incarceration

already undergone by the Appellant, coupled with the ordeal of a prolonged

trial and appeal, would meet the ends of justice for the offence under Section

304 Part I IPC.

59.The Appellant is accordingly sentenced to rigorous imprisonment for

the period already undergone.

60.The Appellant shall be entitled to the benefit under Section 428 of the

Code of Criminal Procedure, 1973.

61.The fine imposed upon the Appellant by the ld. Trial Court is set

aside. In the event the Appellant has deposited any amount towards fine

pursuant to the Impugned Judgement, the same shall be refunded to him,

subject to verification.

62.The Appellant shall be released forthwith, if not required to be

CRL.A. 1008/2025 Page 34of 34

detained in any other case.

63.Accordingly, the appeal is allowed in part, in the above terms,

pending applications, if any, are disposed of.

64.Copy of this order be sent to the Jail Superintendent, for information

and compliance.

MADHU JAIN

JUDGE

PRATHIBA M. SINGH

JUDGE

FEBRUARY 27, 2026/P