CRL.A. 48/2025 & CRL.A. 65/2025 Page 1of 25

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 10

th

March, 2026

Pronounced on: 8

th

April, 2026

Uploaded on: 8

th

April , 2026

+ CRL.A. 48/2025 & CRL.M.A. 30839/2025, CRL.M.(BAIL)

88/2025

SANJAY .....Appellant

Through: Mr. B. Badrinath, DHCLSC with Mr.

Dhruv Bhardwaj, Advs.

versus

STATE GOVT. OF NCT OF DELHI .....Respondent

Through: Mr. Ritesh Kumar Bahri, APP with

Ms. Divya Yadav and Mr. Lalit

Luthra, Advs.

Mr. Rajat Manchanda, Ms. Megha

Gaur, Mr. Mayank Nautiyal, Advs.

for complainant.

WITH

+ CRL.A. 65/2025 & CRL.M.(BAIL) 115/2025

PRADEEP .....Appellant

Through: Mr. Praveen Kumar, Mr. Manoj

Kumar, Mr. Satvik Mishra, Advs.

versus

THE STATE .....Respondent

Through: Mr. Ritesh Kumar Bahri, APP with

Ms. Divya Yadav and Mr. Lalit

Luthra, Advs.

CORAM:

JUSTICE PRATHIBA M. SINGH

JUSTICE MADHU JAIN

JUDGMENT

MADHU JAIN, J.

1.The present appeals have been preferred under Section 415 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter, ‘BNSS’)assailing

the impugned judgment of conviction and order on sentence dated 18

th

May,

CRL.A. 48/2025 & CRL.A. 65/2025 Page 2of 25

2024 and 16

th

October, 2024 respectively passed by the ld. ASJ (FTC-02),

South East, Saket Court, Delhi whereby the Appellants have been convicted

in Sessions Case No. 1296/2016 arising out ofFIR No. 255/2012registered

at P.S. Pul Prahlad Pur, New Delhi, under Section 302/34 of the Indian

Penal Code, 1860 (hereinafter‘IPC’), holding as under:

“201. To sum up, in view of above

discussion, the prosecution has proved

beyond reasonable doubt the charge

under section 302/34 of the Indian Penal

Code against the accused persons,

Pradeep and Sanjay @ Kalia, so the

accused persons, Pradeep and Sanjay @

Kalia are found guilty of having

committed the said offence and hence,

they are convicted of offence punishable

under sections 302/34 of the Indian Penal

Code, 1860.”

2.By the impugned judgment of conviction and order on sentence, the

Appellants have been sentenced to rigorous life imprisonment for the

commission of offences punishable under Section 302 read with Section 34

of the IPC, along with fine of Rs. 70,000/- . Out of the fine, a sum of Rs.

7,500/- shall be paid to the Prosecution/Respondent for the expenses

incurred by the State and a sum of Rs.30,000/- shall be given to the family

of the deceased, as part compensation. In default of payment of fine, the

Appellants shall undergo simple imprisonment for a period of 6 months.

Factual Matrix

3.On 29

th

August 2012, P.S. Pul Prahlad Pur, New Delhi at about 10:53

A.M., received an informationvideDD No. 6A regarding a boy having been

stabbed at the petrol pump, Lal Kuan and that he was serious. The said

information was entrusted to Sub-Inspector Sunil Kumar, who along with

CRL.A. 48/2025 & CRL.A. 65/2025 Page 3of 25

Constable Bhojpal reached the place of occurrence. Inspector Dharam Dev,

the officer-in-charge of the police station, also arrived at the spot along with

other police staff. At the spot, bloodstains were present on the cemented tiles

at two places and the injured person, Neeraj (the deceased) had already been

removed to the hospital by a PCR van. Upon inquiry, one boy Rajesh (PW-

1) (hereinafter ‘Complainant’), who was present there, produced himself as

an eyewitness and his statement was recorded.

4.According to the police report,i.e.,inter-alia, as stated by the

Complainant/Rajesh that he lived at 14, T-Huts, Kalka Stone, Lal Kuan,

M.B. Road, New Delhi and was in a private job in Municipal Corporation of

Delhi, and he stayed home due to non- availability of work. On 29

th

August

2012, at about 10:30 A.M., he along with his friends Neeraj, Paua and

Shahrukh were smoking cigarettes sitting on the wall of the bus stand Prem

Nagar, Lal Kuan. At that time, the Appellant/Pradeep (hereinafter

‘Pradeep’)came there and demanded a cigarette from him. Upon the

Complainant’s refusal, Pradeep pushed him, whereupon the Complainant

came down from the wall and pushed Pradeep back, leading to an altercation

between Pradeep, deceased Neeraj and the Complainant. Thereupon,

Pradeep said“I will be back to teach you a lesson”and ran towards Babban

Dhaba, and returned to the spot carrying a vegetable-cutting knife in his

hand. He attacked the Complainant with the knife, however, the

Complainant caught hold of his hand and a scuffle ensued between deceased

Neeraj and Pradeep. In the meantime, Pradeep’s younger brother, the

Appellant Sanjay @ Kalia (hereinafter ‘Sanjay’)came to the spot and freed

Pradeep and told him“Maar isko chaaku maar de”.Pradeep attempted to

attack the Complainant, however, he ran and picked up a brick. Meanwhile,

Sanjay caught hold of Neeraj from behind and told Pradeep“Maar isko

CRL.A. 48/2025 & CRL.A. 65/2025 Page 4of 25

chaaku maar de”. Thereupon, Pradeep stabbed Neeraj with the knife in his

abdomen, who fell down and when the Complainant tried to lift him, his T-

shirt got blood-stained. The Complainant then ran towards Neeraj’s house

and brought Neeraj’s mother on the spot of incident. The Complainant

further stated that he knew both the Appellants and they, in furtherance of

their common intention, caused the death of Neeraj.

5.Inspector Dharam Dev and Sub-Inspector Sunil Kumar proceeded to

the Trauma Centre, AIIMS, New Delhi wherein they collected MLC No.

326879/12 of Neeraj, who had been declared ‘brought dead’. Inspector

Dharam Dev thereupon formally inspected the dead body and found that the

stab wound was present on the chest below the left nipple. Both then

returned to the spot, meanwhile, ASI Sajjan Kumar, In-charge, Crime team

along with Photographer Constable Ashwin Kumar, also reached the spot,

inspected the crime scene and took photographs thereof. On the basis of the

statement of the Complainant, scene of crime, MLC and dead-body, arukka

was prepared and the present case was registered under Sections 302/34

IPC, and the investigation was taken up by Inspector Dharam Dev himself.

6.The post-mortem report opined that the cause of death was

cardiogenic shock due to a stab injury to the chest, and that all the injuries

were ante-mortem in nature. The relevant post mortem report reads as under:

“J- OPINION- The cause of death to the best

knowledge and belief. Cardiogenic shock and its

complications due to incised stab wound to the

chest. All Injuries are antemortem in nature.”

CRL.A. 48/2025 & CRL.A. 65/2025 Page 5of 25

7.During the course of investigation, a site plan was prepared at the

instance of the Complainant, who produced his blood-stained T-shirt, which

was seized. Statements of witnesses including Shahrukh (PW-5) and Sumit

@ Paua (PW-8) were recorded, who corroborated the version of the

Complainant.

8.The statement of Babban Singh (PW-4), the owner of Babban Dhaba,

CRL.A. 48/2025 & CRL.A. 65/2025 Page 6of 25

was also recorded. He stated that he had been a guard and had been running

a dhaba. He stated that the Appellants would often come to his dhaba to eat

food, on 29

th

August 2012, at about 10:30am, Pradeep suddenly came to his

dhaba and took away his kitchen knife, which was lying on the table. He

later came to know that Pradeep had stabbed a boy with that knife. On 11

th

September 2012, a Test Identification Parade (TIP) of the recovered knife

was conducted in which the witness Babban Singh identified the knife as

belonging to his dhaba.

9.On 30

th

August 2012, Inspector Dharam Dev along with SI Sunil

Kumar and Head Constable Prahlad Singh went in search of the Appellants.

Pradeep was then identified at the instance of Head Constable Prahlad Singh

and thereafter he was arrested. During investigation, Pradeep confessed to

the commission of the crime. Upon interrogation, he also disclosed that he

was in a habit of taking liquor andGanjaand on the date of the incident, he

came to Prem Nagar bus stand under the influence of alcohol. There were

four boys who were smoking cigarettes. He knew the Complainant and

asked him to give a cigarette, however, the Complainant did not give him

the said cigarette and started abusing him and pushed him. Thereafter,

Pradeep got angry and brought a kitchen knife which was lying on the table

of Babban’s dhaba and attacked them. He corroborated the Complainant’s

statement. He further stated that after crossing the road, he fled away

towards DDA Jungle and after breaking the knife into two pieces, he threw

the same in the jungle near the gate wall. Pursuant to his disclosure

statement, the broken knife allegedly used in the offence was recovered

from the DDA jungle near the ICD/TKD area. During investigation, on 5

th

September 2012, Sanjay surrendered before the Court. During interrogation,

Sanjay also confessed to committing the crime and thereafter he was

CRL.A. 48/2025 & CRL.A. 65/2025 Page 7of 25

formally arrested. He admitted to being in a habit of consuming liquor and

taking tobacco. He also pointed out the place of occurrence.

10.Upon completion of the investigation, the charge-sheet was filed

before the concerned Magistrate under Sections 302/34 IPC.Videorder

dated 29

th

November 2012, the Magistrate took cognizance of the offence.

The case was thereafter committed to the Court of Sessions.Videorder

dated 10

th

January, 2013, upon considering the police report and the

documents sent along with it under Section 173 Cr.P.C, charges under

Sections 302/34 IPC were framed against Pradeep and Sanjay @ Kalia, to

which they pleaded not guilty and claimed trial.

11.During the course of the Trial, the Prosecution examined as many as

33 witnesses to establish its case. The Prosecution mainly relied upon the

testimony of three eye-witnesses to the incident, namely, the Complainant

(PW-1), (PW-5) Shahrukh, and Sumit @ Paua (PW-8). Each of these

witnesses provided a detailed ocular account of the incident, they did not

have any animus or grudge against the Appellants. For the sake of brevity,

the statements have been summarized above and have not been repeated

herein. The remaining witnesses comprised of police officials, medical

experts, forensic witnesses, public witnesses and formal witnesses.

12.The ld. Trial Court, after recording the evidence of the parties,

considered the Defence and the Prosecution cases in detail. The Appellants

examined two defence witnesses in support of their case. The first defence

witness, Roop Singh (DW1), deposed that he was a mason by profession and

that Appellant Sanjay used to work with him as abaildar. According to the

witness, on 29

th

of an unspecified month in 2012, Sanjay had finished his

work and returned home, however, the witness did not remember the exact

month. The second defence witness, Dheeraj Kumar (DW2), stated that on

CRL.A. 48/2025 & CRL.A. 65/2025 Page 8of 25

28

th

August, 2012 he, along with Appellant Pradeep and two other boys, had

gone to Faridabad at about 11:00 P.M. for work as helpers and conductors

on a bus. Their work concluded at around 10:00 A.M. the following day,

after which all of them returned to their respective homes. He too did not

depose anything further relevant to the occurrence.

13.The Appellants were examined under Section 313 Cr.P.C.In their

statements, the Appellants denied the incriminating circumstances in

evidence against them and claimed to have been falsely implicated and to be

innocent.

14.The ld. Trial Court,videthe impugned judgment, convicted the

Appellants, holding that the Prosecution had proved beyond reasonable

doubt the charge under Sections 302/34 IPC and convicted the Appellants of

the same. The relevant portion of the judgment is reproduced hereinbelow

for ease of reference:

“199. There are three eye-witnesses of the incident,

namely, PW1 Rajesh (the complainant), PW5

Shahrukh and PW8 Sumit, who have given their

ocular account of this case. All the three witnesses

did not have animus or grudge against the accused

persons. The manner of the incident as described by

them is corroborated by the medical evidence which

shows the presence of injuries i.e. a stab wound of

1cm X 0.5cm on the left side of chest, having depth of

6.2 cm, attributable to a sharp weapon. From the fact

duly proved of bringing of the knife by the accused

Pradeep from the nearby Dhaba after his altercation

with the complainant Rajesh, the weapon of offence

i.e. knife used in stabbing, the manner in which the

injury was inflicted on the person of the victim, the

words uttered by the accused persons before

inflicting injuries and the part of body in which the

stab injury was inflicted, I am of the considered

CRL.A. 48/2025 & CRL.A. 65/2025 Page 9of 25

opinion that death of the deceased was caused by the

accused persons with the intention of causing death

and while the accused Sanjay @ Kalia had caught

hold the injured from the back, the accused Pradeep

had stabbed the deceased with a knife in his chest

proves that both the accused persons had acted in

concert. Further, the accused persons have not been

able to spell out any plausible reason for their false

implications.”

Submissions

Submissions on Behalf of the Appellant Sanjay in CRL.A. 48/2025

15.Mr. B. Badrinath, ld. Counsel appearing on behalf of Sanjay submits

that there were material contradictions in the depositions of the Prosecution

witnesses which put a serious doubt on the Prosecution’s case. He submits

that the alleged incident, as per the Prosecution, was witnessed by the

Complainant (PW-1), Shahrukh (PW-5) and Sumit (PW-8). However, both

Shahrukh (PW-5) and Sumit (PW-8), who are independent witnesses, have

failed to ascribe any role to Sanjay and have, in fact, exonerated him.

Shahrukh (PW-5) has clearly deposed that the incident occurred during a

scuffle between Pradeep and the Complainant (PW-1), and that deceased

Neeraj sustained the injury in the course of that scuffle, without attributing

any role to Sanjay. Shahrukh (PW-5) has specifically denied the suggestion

that Sanjay had exhorted Pradeep to stab Neeraj. Similarly, Sumit (PW-8)

has also not supported the Prosecution’s casequaSanjay and has denied

that Sanjay either caught hold of the deceased Neeraj or exhorted the co-

accused to commit the offence. Ld. Counsel further submits that

Complainant (PW-1) himself admitted in cross-examination that he

personally did not see Pradeep stabbing Neeraj, thereby raising serious

CRL.A. 48/2025 & CRL.A. 65/2025 Page 10of 25

doubt as to the manner of the occurrence and the specific role attributed to

Sanjay.

16.He further submits that no independent witness has been examined by

the Prosecution in support of their case despite the alleged incident having

taken place at a public place, namely, a main road in front of a bus stand.

The Prosecution witnesses themselves have categorically deposed regarding

the presence of numerous independent persons at the spot. In this regard,

reliance is placed on the judgment of the Supreme Court inHarijana

Thirupala v. Public Prosecutor, (2002) 6 SCC 470, wherein it has been

held that non-examination of independent witnesses seriously impairs the

credibility of the Prosecution’s case, especially when the explanation offered

is feeble.

17.He further submits that the alleged weapon, being knife Ex.P2, was

recovered from a forested/open area accessible to all members of the public.

He places reliance uponKrishan v. State of Haryana, (2024) SCC OnLine

SC 70,wherein it has been held that recovery from an open space easily

accessible to many, and without joining independent witnesses, renders the

recovery suspicious and doubtful.

18.He further submits without prejudice to the argument that the

Appellant was not present at the spot, that even as per the Prosecution’s

case, a scuffle took place between the Complainant (PW-1), the deceased

Neeraj and Pradeep, whereafter Pradeep brought a knife from a dhaba which

was only 10–15 steps away, and in the course of the scuffle stabbed the

deceased Neeraj. Inspector Dharam Dev (PW-31) has also deposed in cross-

examination about injuries on Pradeep’s person which lends credence to the

fact that there was a scuffle between Pradeep, Complainant (PW-1) and

CRL.A. 48/2025 & CRL.A. 65/2025 Page 11of 25

deceased Neeraj, thus demonstrating that the incident took place without

premeditation, in a sudden fight, and without the offenders having taken

undue advantage or acted in a cruel or unusual manner. Ld. Counsel further

submits that Pradeep’s younger brother, Sanjayhad reached the spot only

upon noticing the commotion involving his brother, and not prior to the

incident. He further submits that even as per the Prosecution’s case, the

deceased Neeraj had intervened in the scuffle between Complainant (PW-1)

and Pradeep and, in that process suffered a stab injury, which further

supports the case that the occurrence was sudden and unplanned. In this

regard, reliance is placed uponHem Raj v. State (Delhi Administration),

1990 Supp (1) SCC 291, wherein it was held that when the incident had

occurred on the spur of the moment and in the heat of passion upon a sudden

quarrel and a single stab was inflicted upon the chest of the deceased, he

could not be imputed with the intention to cause death of the deceased or

with the intention to cause that particular fatal injury. He submits that Sanjay

could not be imputed with the intention to cause death but only with the

knowledge that he was likely to cause an injury which was likely to cause

death. Reliance is further placed uponJagtar Singh v. State of Punjab,

(1983) 2 SCC 342 and Ranjitham v. Basavaraj,(2012) 1 SCC 414,wherein

in similar circumstances the Supreme Court converted the conviction from

Section 302 to Section 304 Part II of the IPC. It is accordingly submitted

that although Complainant (PW-1) alleged that Sanjay had caught hold of

the deceased, the said allegation stands contradicted by Complainant’s (PW-

1) own admission that he did not witness the actual act of stabbing, as well

as by the depositions of Shahrukh (PW-5) and Sumit (PW-8), both of whom

have categorically exonerated Sanjay, thereby rendering the said allegation

wholly unreliable. In the absence of any cogent evidence establishing

CRL.A. 48/2025 & CRL.A. 65/2025 Page 12of 25

participation or a shared common intention, the Prosecution has failed to

prove the case against Sanjay beyond reasonable doubt, and no conviction

under Section 302 read with Section 34 IPC can be sustained against him.

19.Ld. Counsel further submits that Sanjay has already been incarcerated

for approximately 6 years and 5 months. He urges that, in keeping with the

reformative principle of sentencing, the Court ought to take into account that

Sanjay is the father of three daughters, one of whom is a five year minor,

entirely dependent upon him, and that his wife earns a meagre amount

working as a tailor and is unable to maintain the family. He submits that the

sentence already undergone is adequate punishment in the facts and

circumstances of the present case and that the Appellant is capable of

rehabilitation and reintegration into society.

Submissions on Behalf of the Appellant Pradeep in CRL.A. 65/2025

20.The grounds urged on behalf of Sanjay, namely, the non-examination

of independent witnesses despite the incident having taken place at a public

place, material contradictions in the depositions of Prosecution witnesses,

the suspicious recovery of the alleged weapon from an open and accessible

area without reliable forensic corroboration, and the failure of the

Prosecution to establish the genesis of the incident and to prove its case

beyond reasonable doubt, are common to the case of the present Appellant

Pradeep as well, and for the sake of brevity, are not reiterated herein.

21.Ld. Counsel appearing on behalf of Pradeep submits that the genesis

of the incident stems from a minor altercation over a trivial matter which

escalated into an unforeseen event, and there was no enmity or prior

animosity or planning suggesting a premeditated attack. Pradeep was

CRL.A. 48/2025 & CRL.A. 65/2025 Page 13of 25

allegedly arrested on the following day based on a purported confession

during interrogation which is inadmissible under Section 25 of the Indian

Evidence Act, 1872 (hereinafter‘IEA’). He further submits that the

Prosecution has failed to present any cogent evidence directly linking

Pradeep to the commission of the offence and none of the witnesses could

conclusively establish the presence of common intention under Section 34

IPC, thereby undermining the credibility of the Prosecution’s case.

22.He further submits that the ld. Trial Court failed to give due weight to

the material contradictions in the Prosecution’s evidence. The Complainant

(PW1) stated that Sanjay was present and exhorted Pradeep, whereas

Shahrukh (PW5) stated that Sanjay was not present at the time of stabbing,

and the Complainant (PW1) himself admitted that he did not actually see

Pradeep stabbing Neeraj. Shahrukh (PW5) and Sumit (PW8) also provided

differing accounts. These material contradictions go to the root of the

Prosecution’s case creating a strong element of reasonable doubt, in so far as

Sanjay is concerned, his role in the stabbing is not clear.

23.Ld. Counsel further submits that the ld. Trial Court failed to

appreciate the absence of crucial forensic evidence, as, although the police

have claimed to have recovered the weapon of offence, a kitchen knife, from

an open public area at the instance of Pradeep, however, no bloodstains or

fingerprints were found and the forensic report does not conclusively link

the knife to the commission of the offence, thereby casting serious doubt on

the alleged recovery. He further submits that Babban Singh, the dhaba

owner, failed to unequivocally identify the knife during trial, further

weakening the Prosecution’s case.

CRL.A. 48/2025 & CRL.A. 65/2025 Page 14of 25

24.Ld. Counsel further submits that the ld. Trial Court failed to

appreciate the contradictions between the FIR and the testimonies of

Prosecution witnesses during the examination-in-chief, particularly

concerning the sequence of events, as well as the medical evidence,

inasmuch as the post-mortem reflects a single stab wound whereas the

Prosecution witnesses claimed multiple injuries. He further submits that the

Complainant (PW1), being a habitual user ofganja, casts doubt on his

ability to accurately recall the sequence of events, thereby weakening the

credibility of the Prosecution’s case.

Submissions on behalf of the Respondent- State

25.Per Contra, Mr. Bahri, ld. APP for the State submits that

Complainant (PW1) concluded his examination-in-chief on 10

th

January,

2014, fully supporting the Prosecution’s case. His cross-examination was

conducted only on 8

th

August, 2014, after a gap of approximately seven

months, despite the opportunity available to the defence throughout. The

examination-in-chief of Complainant (PW1), which stood unrebutted for

seven months, is accordingly entitled to due weight and credence, and the

belated cross-examination is to be looked with caution.

26.He further submits that the testimonies of Shahrukh (PW-5) and

Sumit (PW-8), though declared hostile by the Prosecution, cannot be

discarded in their entirety. Reliance is placed uponKhujji @ Surendra

Tiwari v. State of Madhya Pradesh, (1991) 3 SCC 627, wherein it was held

that the evidence of a prosecution witness cannot be rejectedin totomerely

because the Prosecution chose to treat him as hostile, and that such evidence

is not to be treated as washed off the record altogether but can be accepted to

the extent his version is found dependable on careful scrutiny. In the present

CRL.A. 48/2025 & CRL.A. 65/2025 Page 15of 25

case, notwithstanding their hostility on the question of Sanjay’s role,

Shahrukh (PW-5) correctly identified the knife (Ex.P-2) as the weapon used

in the incident, and Sumit (PW-8) admitted in his cross-examination that

Pradeep stabbed the deceased Neeraj in the abdomen and that Neeraj fell to

the ground on being stabbed. The relevant portions of the said testimonies

are extracted below:

Witness Cross- Examination

Shahrukh

(PW-5)

“…The knife used in the offence was a kitchen knife

and I can identify the same, if shown.

(at this, stage, MHC(M) has produced one sealed

paper envelope sealed with seal of DSP FSL which is

opened and one more envelope bearing particulars of

this case alongwith a kitchen knife broken in two

pieces is taken out and shown to the witness) The

knife shown to me in two pieces is the same knife

which was used in the incident in my presence and

the same is exhibited as Ex. P2.”

Sanjay

(PW-8)

“…It is correct that Pradeep stabbed Neeraj in

abdomen. It is correct that on being stabbed, Neeraj

fell on the ground. It is correct that thereafter Neeraj

was lifted from the spot by Rajesh and thereafter I

alongwith Rajesh called mother of Neeraj to the

spot.”

These admissions having gone uncontroverted, are liable to be relied upon

by this Court.

27.He submits that the medical evidence fully supports the Prosecution’s

case. The post-mortem report records a single stab wound obliquely placed

on the left side of the chest, measuring 1.4 cm × 0.2 cm with a depth of

approximately 6.2 cm, situated 4.5 cm from the midline and 7 cm below the

nipple. He submits that the left side of the chest is a vital part of the human

CRL.A. 48/2025 & CRL.A. 65/2025 Page 16of 25

body, and inflicting of a stab wound of such depth upon such vital part is

sufficient to establish the intention to cause bodily injury sufficient in the

ordinary course of nature to cause death. He submits that even if it be

accepted that the blow was intended for the Complainant (PW-1) but the

deceased Neeraj had intervened, which led to the stabbing. Accordingly, the

principle of transfer of malice under Section 301 IPC would be attracted and

the conviction under Section 302 IPC would be fully sustained.

28.He further submits that the presence of both Appellants at the spot and

their respective roles have been duly established by the testimonies of

Complainant (PW-1) and Sumit (PW-8). He submits that Babban Singh

(PW-4) has correctly identified the knife and the TIP proceedings have been

properly conducted and proved. He submits that common intention under

Section 34 IPC arose during the altercation, and the presence and

participation of Sanjay is sufficient to hold him liable.

29.On the question of sentence insofar as Appellant Sanjay is concerned,

he submits that the Court may take note of his prior criminal antecedents.

Appellant Sanjay has been previously convicted under Sections 382 and 392

read with Section 34 IPC inFIR No. 44/2010, and under Sections 279, 337,

338 and 471 IPC inFIR No. 594/2020. In view of these aggravating

circumstances, it is submitted that no leniency in sentence is warranted in his

case.

Analysis and Findings

30.The Court has heard the parties and considered the matter.

31.It is evident from the record that on 29

th

August 2012, at about 10:30

A.M., the deceased Neeraj was present at the bus stand, Prem Nagar, Lal

Kuan, along with Complainant (PW-1), Shahrukh (PW-5) and Sumit (PW-

CRL.A. 48/2025 & CRL.A. 65/2025 Page 17of 25

8). It is not disputed that Pradeep arrived at the spot, that an altercation arose

over a demand for a cigarette, that Pradeep subsequently went to Babban

Dhaba and returned with a knife, and that deceased Neeraj sustained a stab

wound on the left side of his chest, resulting in his death. The post-mortem

report confirms the cause of death as cardiogenic shock due to an incised

stab wound to the chest. The factum of death, its cause, and the presence of

the Appellants stands established. The issue for determination is whether the

offence under Section 302/24 IPC is made out and whether the conviction

under Section 302 read with Section 34 IPC can be sustained.

32.The ld. Trial Court convicted both Appellants under Section 302 read

with Section 34 IPC, holding that the Appellants acted in concert with the

intention to cause death. The Court has examined whether the facts on

record, as disclosed by the Prosecution’s own evidence, justify a conviction

for murder, or whether the offence falls within Exception 4 to Section 300

IPC, thus amounting to culpable homicide not amounting to murder.

Exception 4 to Section 300 IPC reads:

“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—

xxx

Exception 4 — Culpable homicide is not murder if

it is committed without premeditation in a sudden

fight in the heat of passion upon a sudden quarrel

and without the offender having taken undue

advantage or acted in a cruel or unusual manner.

Explanation — It is immaterial in such cases which

party offers the provocation or commits the first

assault.”

CRL.A. 48/2025 & CRL.A. 65/2025 Page 18of 25

For Exception 4 to Section 300 to apply, four ingredients must be satisfied:

(i) the act must be committed without premeditation; (ii) it must occur in a

sudden fight in the heat of passion; (iii) it must arise upon a sudden quarrel;

and (iv) the offender must not have taken undue advantage or acted in a

cruel or unusual manner. The said Explanation clarifies that it does not

matter which party offered provocation or committed the first assault.

33.On the question of premeditation, the Prosecution’s own case shows

there was no prior design or plan. The altercation arose spontaneously over a

trivial demand for a cigarette. There was no prior enmity between Pradeep

and deceased Neeraj, as Complainant (PW-1) admitted in cross-

examination. Pradeep did not arrive at the spot armed. Post the scuffle, he

went to the dhaba and returned with a kitchen knife belonging to Babban

Singh (PW-4), which was lying on the table. The knife was not brought from

home or kept ready. The entire sequence, from the demand for a cigarette to

the fatal blow, unfolded within minutes. There is no evidence to suggest that

either Appellant came to the spot with any intention to assault or kill Neeraj.

The lack of premeditation is thus established on the facts.

34.The requirement of a sudden fight in the heat of passion upon a

sudden quarrel is also met. Complainant (PW-1) stated that Pradeep came

and demanded a cigarette, was refused, pushed the Complaint (PW-1), he

was pushed back, and that heated words were exchanged. Thereafter,

Pradeep ran towards the dhaba, saying he would return and teach them a

lesson. Sumit (PW-8) confirmed this, stating that there was an exchange of

abuses and a scuffle between Complaint (PW-1) and Pradeep, and that

Complaint (PW-1) slapped Pradeep before Pradeep left for the dhaba and

returned with a knife. The Investigating Officer, Inspector Dharam Dev

CRL.A. 48/2025 & CRL.A. 65/2025 Page 19of 25

(PW-31) , admitted that minor injuries of scuffle were found on Pradeep’s

body at the time of his arrest. This supports the account of a sudden fight

involving mutual blows and there is no evidence of a calculated or deliberate

attack. The incident was a spontaneous escalation of a petty quarrel.

35.The third and fourth ingredients,i.e.,absence of undue advantage and

absence of cruel or unusual conduct, are also satisfied. The post-mortem

evidence shows that Neeraj suffered a single stab wound on the left side of

the chest. Dr. Atul Kumar (PW-12) confirmed that there was only one stab

wound. A single blow in the course of a scuffle, without repeated or

sustained assault, does not by itself mean that the offender took undue

advantage or acted in a cruel or unusual manner. The deceased Neeraj was

not restrained or rendered helpless before being stabbed. On the contrary,

Shahrukh (PW-5) deposed that the deceased Neeraj had intervened in the

scuffle between Pradeep and Complainant (PW-1), and was injured during

that intervention. The Complainant (PW-1) said in cross-examination that he

did not see Pradeep stab Neeraj, and that Neeraj informed him of the

stabbing as he was being taken away. The stabbing happened during the

scuffle and was not a deliberate attack on a defenceless person.

36.It is also significant that Shahrukh (PW-5), an independent witness,

deposed that during the scuffle between Pradeep and the Complainant (PW-

1), Neeraj came forward to intervene and was injured in the process. This

version is consistent with the Appellants’ case and the overall Prosecution

evidence. The deceased Neeraj was not the target of a premeditated attack,

he was injured in a sudden fight to which he was not a party at the outset,

having intervened in a scuffle involving others. This supports the application

of Exception 4 to Section 300 IPC.

37.The Court also considers the question of common intention attributed

CRL.A. 48/2025 & CRL.A. 65/2025 Page 20of 25

to the Appellant Sanjay under Section 34 IPC. The Supreme Court in

Chellappa v. State, (2020) 5 SCC 160held that Section 34 IPC is not a

substantive offence, and that before holding someone vicariously liable, the

Prosecution must prove the existence of a shared intention to commit the

crime. The Court cautioned that common intention cannot be presumed

merely from the presence at the scene or from a minor role, and that where

doubt exists, it must benefit the accused.

38.In the present case, the common intention attributed to Sanjay has

been inferred mainly from the allegation that he caught hold of the deceased

Neeraj and urged Pradeep to stab him. However, both independent

witnesses, Shahrukh (PW-5) and Sumit (PW-8), did not support this.

Shahrukh (PW-5) said Sanjay arrived after Neeraj was stabbed. Sumit (PW-

8), deposed that he did not see Sanjay catch hold of Neeraj and that Neeraj

was standing at some distance. In these circumstances, the inference of

shared intention to commit murder cannot be sustained against Sanjay.

39.Even if the presence and participation of Sanjay are accepted for the

sake of argument, Section 34 IPC is a rule of joint liability and does not

create a separate or aggravated offence. The liability under Section 34 IPC

follows the nature of the principal offence established against the main

accused. The Court finds that the offence made out against Pradeep is

culpable homicide not amounting to murder under Exception 4 to Section

300 IPC, accordingly, the liability of Sanjay, even if attached through

Section 34 IPC, cannot exceed that of the principal offender. The conviction

of Sanjay under Sections 302/34 IPC is therefore not sustainable.

40.Having found that Exception 4 to Section 300 IPC applies, it is

necessary to determine whether this case falls under Part I or Part II of

Section 304 IPC. Part I applies where the act is done with the intention of

CRL.A. 48/2025 & CRL.A. 65/2025 Page 21of 25

causing death or such bodily injury as is likely to cause death. Part II applies

where the act is done with the knowledge that it is likely to cause death, but

without intention to cause death or such bodily injury as is likely to cause

death. In the present case, the knife was not Pradeep’s property but was

taken from the dhaba in the heat of the moment. The fight was spontaneous,

only a single blow was inflicted and the Complainant (PW-1) did not see the

stabbing. In these circumstances, while there was knowledge that the act was

likely to cause death, there was no clear intention to cause death or a specific

injury likely to cause death. The present case thus falls under Section 304

Part II IPC.

41.InNarayan Yadav v. State of Chhattisgarh, 2025 SCC OnLine SC

1603, the Supreme Court recently observed that for Exception 4 to Section

300 IPC to apply, it is not enough to show a sudden quarrel and no

premeditation, it must also be shown that the offender did not take undue

advantage or act in a cruel or unusual manner. The relevant portion reads as

under:

“40. Exception 4 to Section 300 of the IPC applies

in the absence of any premeditation. This is very

clear from the words used in the provision itself. It

contemplates that the sudden fight must occur in

the heat of passion, or upon a sudden quarrel. The

Exception deals with a case of provocation not

covered by Exception 1, although it would have

been more appropriately placed after that

exception. It is founded upon the same principle, as

both involve the absence of premeditation.

However, while Exception 1 involves total

deprivation of self-control, Exception 4 refers to

that heat of passion which clouds a person’s sober

reason and urges them to commit acts they would

not otherwise commit. There is provocation in

Exception 4, as there is in Exception 1, but the

CRL.A. 48/2025 & CRL.A. 65/2025 Page 22of 25

injury caused is not the direct consequence of that

provocation. In fact, Exception 4 addresses cases

where, notwithstanding that a blow may have been

struck or provocation given at the outset of the

dispute, regardless of how the quarrel originated,

yet the subsequent conduct of both parties’ places

them on an equal footing with respect to guilt.”

41. A “sudden fight” implies mutual provocation

and the exchange of blows on both sides. In such

cases, the homicide committed is clearly not

attributable to unilateral provocation, nor can the

entire blame be placed on one side. If it

were, Exception 1 would be the more appropriate

provision. There is no prior deliberation or

intention to fight; the fight breaks out suddenly,

and both parties are more or less to blame. One

party may have initiated it, but had the other not

aggravated the situation by their own conduct, it

may not have escalated to such a serious level. In

such scenarios, there is mutual provocation and

aggravation, making it difficult to determine the

precise share of blame attributable to each

participant. The protection of Exception 4 may be

invoked if death is caused: (a) without

premeditation; (b) in a sudden fight; (c) without

the offender having taken undue advantage or

acted in a cruel or unusual manner; and (d) the

fight must have been with the deceased.

42. To bring a case within Exception 4, all the

ingredients mentioned therein must be satisfied. It

is important to note that the term “fight” occurring

in Exception 4 to Section 300 of the IPC is not

defined in the IPC. A fight necessarily involves two

parties – it takes two to make a fight. The heat of

passion requires that there must be no time for the

passions to cool, and in such case, the parties may

have worked themselves into a fury due to a prior

verbal altercation. A fight is a combat between two

and more persons, whether with or without

CRL.A. 48/2025 & CRL.A. 65/2025 Page 23of 25

weapons. It is not possible to enunciate any

general rule as to what constitutes a “sudden

quarrel”. This 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 enough to

show that there was a sudden quarrel and no

premeditation. It must also be shown that the

offender did not take undue advantage or act in a

cruel or unusual manner. The expression “undue

advantage” as used in the provision means

“unfair advantage”.

43. From the above conspectus, it emerges that

whenever a court is confronted with the question

whether the offence is “murder” or “culpable

homicide not amounting to murder”, it will be

convenient to approach the problem in three

stages. The question to be considered at the first

stage is, whether the accused committed an act

which caused the death of another person. Proof of

a causal connection between the act of the accused

and the resulting death leads to the second stage

for considering whether that act of the accused

amounts to “culpable homicide” as defined in

Section 299 of the IPC. If the answer to this

question is, prima facie, found in the affirmative,

the next stage involves considering the application

of Section 300 of the IPC. At this stage, the court

must determine whether the facts proved by the

prosecution bring the case within the ambit of any

of the four clauses of the definition of “murder”

contained in Section 300. If the answer to this is in

the negative, the offence would be “culpable

homicide not amounting to murder”, punishable

under either the first or the second part of Section

304, depending respectively on whether the second

or the third clause of Section 299 is applicable.

However, if the answer is in the positive, but the

case falls within any of the exceptions enumerated

CRL.A. 48/2025 & CRL.A. 65/2025 Page 24of 25

in Section 300, the offence would still be “culpable

homicide not amounting to murder”, punishable

under the Part I of Section 304 of the IPC.”

(emphasis supplied)

42.In the present case, despite the Appellant Pradeep having a knife in

his hand and the deceased was unarmed, he did not take any undue

advantage of the same. Only a single wound was caused on the spur of the

moment. Thus, Exception 4 Section 300 IPC to would be applicable.

43.As to sentence, the Appellants have been in custody for more than

seven years. Both have therefore undergone a substantial period of

incarceration. Sanjay is the father of three daughters, one of whom is a five-

year minor, entirely dependent upon him, his wife earns a meagre income

and cannot maintain the family. Considering the nature of the offence as

found by this Court, the period of sentence already undergone, and the

absence of aggravating factors, it is held that a sentence of the period

already undergone would be adequate and appropriate.

Conclusion

44.Having regard to the material on record and for the reasons stated

above, this Court holds that the conviction against the Appellants cannot be

sustained in its present form. The offence committed by the Appellants falls

within the category of culpable homicide not amounting to murder.

45.Accordingly, the judgment of conviction dated 18

th

May, 2024 and the

order on sentence dated 16

th

October, 2024, passed by the ld. Trial Court are

hereby modified.

CRL.A. 48/2025 & CRL.A. 65/2025 Page 25of 25

46.The conviction of both Appellants under Section 302 read with

Section 34 IPC is set aside and the Appellants are convicted for culpable

homicide not amounting to murder punishable under Section 304 Part II of

the IPC read with Section 34 IPC.

47.The sentence of both Appellants is modified to the period of

imprisonment already undergone.

48.The fine imposed by the ld. Trial Court shall remain. The directions

regarding payment of compensation to the family of the deceased Neeraj

shall also remain in force.

49.Both Appellants are directed to be released forthwith, if not required

in any other case.

50.The Appeals are accordingly allowed. Pending applications, if any,

are disposed of.

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

and compliance.

52.Let the copy of this order be communicated to the Secretary, DLSA

(South-East) for necessary information and compliance.

MADHU JAIN

JUDGE

PRATHIBA M. SINGH

JUDGE

APRIL 8, 2026/Av