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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On: 30.10.2018

Judgment Pronounced On: 30.11.2018

CRL. A. 709/2018, Crl.M. (Bail) Nos.1076-78/2018

VIPIN SHARMA & ORS. ..... Appellants

Through Mr. Ramesh Gupta, Senior Advocate

with Mr. Bharat Sharma, Advocate

Versus

STATE ..... Respondent

Through Ms. Radhika Kolluru, APP

Insp. Pramod Kumar SHO/Krishna

Nagar

CORAM:

HON’BLE MR. JUSTICE SIDDHARTH MRIDUL

HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

J U D G M E N T

SIDDHARTH MRIDUL, J

1.The present appeal under section 374(2) of the Code of Criminal

Procedure (hereinafter referred to as 'Cr.P.C') assails the judgment and order

of conviction and order on sentence dated 24.04.2018 and 08.05.2018

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respectively, in Sessions Case No. 497/2016, titled as 'State vs. Mahadev

Rawat and Ors.', emanating from FIR No. 90/2011 (hereinafter referred to

as the 'subject FIR').

2.By way of the impugned judgment and order of conviction and order

on sentence dated 24.04.2018 and 08.05.2018 respectively, Vipin Sharma

(hereinafter referred to as 'Appellant No.1'); Vivek Sharma @ Billo

(hereinafter referred to as 'Appellant No.2') and Gaurav Sharma (hereinafter

referred to as 'Appellant No.3'), were convicted and sentenced under the

provision of section 302 read with section 34 of the Indian Penal Code, 1860

(hereinafter referred to as 'IPC') to life imprisonment along with a fine of Rs.

50,000 each, as well as, under Sections 323/324/34 IPC and sentenced to

Rigorous Imprisonment for 1 year. In default of payment of fine, the

Appellants have been sentenced to undergo simple imprisonment for a

further period of six months. However, the benefit of the provision under

section 428 Cr.P.C has been granted to the appellants. All the sentences have

been directed to run concurrently.

3.Charge was also framed against the Appellants, as well as, three other

accused persons, namely, Mahadev Rawat, Rajesh Sharma and Yash Gupta

@ Chotti (hereinafter referred to as the ‘assailants’) under Section 307/34 of

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the IPC and they were all convicted accordingly and sentenced to Rigorous

Imprisonment of seven years each with fine of Rs. One Lac only by the Trial

Court by way of said judgment and order on sentence dated 24.04.2018 and

08.05.2018 respectively.

4.The fulcrum of the case of the prosecution is that on 30.03.2011, the

Appellants, in furtherance of their common intention attacked several

persons present at Gali No.4, Shankar Nagar, Delhi (hereinafter referred to

as the ‘gali’), namely, Kuldeep Thakur (PW-1), Subhash Chand (PW-7),

Neeraj Chandhok (PW-8), Naveen Malhotra @ Akshay @ Vicky (PW-12),

Sanjeev Malhotra (PW-13), Shivam Malhotra @ Pinku (PW-14) and

Abhishek (PW-15) (hereinafter collectively referred to as the ‘public

witnesses’) using weapons and during the course thereof, committed murder

of one Gaurav (hereinafter referred to as the ‘deceased’) by inflicting

multiple knife blows, including one on his abdomen.

5.On 30.03.2011 around 10:04 PM, HC Ram Prasad (PW-3) recorded

DD No. 32A in relation to the underlying incident. ASI Om Pal (PW-17)

reached H. No. 28, Gali No.4, Shankar Nagar, Delhi (hereinafter referred to

as the ‘crime spot’) and admitted the deceased, who had sustained stab

injuries to GTB hospital. The PCR took the other injured persons, including

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the assailants to different hospitals. Ct. Jitender Dagar (PW-18) and Insp.

Subhash Kumar (PW- 40), the IO in the present case, collected the MLCs of

the injured persons, including the eye witness PW-1, upon whose statement

therukkawas prepared and sent for registration of the subject FIR. A scaled

site plan was prepared on thepointing out of the crime spot at the instance of

PW-1. [Ex.PW-4/A].Pursuant thereto, the crime spot was investigated and

photographs thereof were taken. During investigation, earth control, blood

stained earth were seized. Articles including broken glass pieces, one blood

stained shirt, a wooden thapi were seized and were sent for forensic

examination. One wiper and a pair of blood stained slippers [Ex.PW-1/P3]

were also seized. Two motorcycles bearing registration number DL-7SBB-

3210 [Ex. PW- 1/P5], as well as, DL-7SBA-6888 [Ex. PW-1/P4] were

seized.

6.The deceased was declared brought dead to the hospital at 11:15PM.

The dead body of the deceased was identified by his relatives [Ex.PW- 18/S

and Ex. PW-18/T]. Post mortem on the dead body [Ex.PW-26/A] was

conducted by Dr. Thejaswi (PW-26) and the body was handed over to the

relatives of the deceased. The cause of death was opined to be “hemorrhagic

shock and its complications due to stab wound on the abdomen”.

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7.During the investigation of the case, on receiving information through

secret informers, the IO along with PW-18 apprehended Appellant No.1[vide

arrest memo Ex. PW-18/D] and Appellant No. 3[vide arrest memo Ex.PW-

18/I] on 05.04.2011 and 21.04.2011 respectively from their residences.

Appellant No. 2 was subsequently arrested by IO along with PW-20 on

21.04.2011 [vide arrest memo Ex. PW-20/A].

8.The disclosure statement of all the Appellants was recorded by the IO

[exhibited as PW-18/F, PW-18/G, PW-18/K, PW-18/M, PW-20/C]. At the

instance of all the appellants, the clothes worn by them at the time of the

incident were recovered and seized [Ex. PW- 18/H, Ex.PW-20/E and

Ex.PW-18/N] and sent for forensic examination. Further, on the pointing out

of the Appellants, the crime spot got verified [vide pointing out memos : Ex.

PW- 18/P, Ex. PW- 20/D and Ex. PW- 18/L]. At the instance of Appellant

No.2, one baseball bat which was used in the commission of the offence was

also recovered from Brij Ghat Garhganga, U.P [Ex.PW-1/P6]. However, the

knife used in inflicting the fatal blow to the deceased was not recovered.Test

Identification Parade (TIP) of the Appellant Nos. 1 and 3 was conducted but

they refused to participate in it.

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9.By way of order dated 12.12.2011, charges were framed under

sections 147; 148; 302 read with 149; 323/324 read with 149; 307/149 and

452/149 of IPC against all the accused. The accused pleaded not guilty and

claimed trial. At the stage of evidence, in support of its case, the prosecution

examined 42 witnesses. The statement of the Appellants was recorded under

section 313 of the Cr.P.C. All the Appellants denied any recovery effected at

their instance, as well as, claim over the case property so recovered. The

assailants chose to examine 3 witnesses in their defence.

10.Broadly, the Trial Court has based the conviction of the Appellants on

the following grounds :

i.Deposition of the star witness, as well as, the material public witnesses

confirming the involvement of the Appellants in the commission of

offence;

ii.Nature of injuries inflicted by the Appellants; and

iii.Common intention to murder/cause injuries so inflicted.

11.Learned counsel appearing on behalf of the appellants limits his

challenge in the appeal to urge that,even if allegations against the appellants

are believed to be true, the case falls within the purview of Section 304 Part

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II of the IPC and not under Section 302 thereof, inasmuch as, in the present

case, only a single injury is found to be fatal and there is nothing on record

that shows either preparation or premeditation on part of the appellants or

discloses the motive behind the commission of the crime.

12.In order to buttress this submission, reliance would be placed on the

decision of the Hon’ble Supreme Court of India inGurmail Singh and ors.

v. State of Punjabreported asAIR 1982 SC 1466, as well as, the decision of

a Division Bench of this Court inRadhey Shyam v. State of NCT of Delhi

beingCRL.A. 1384/2012.

13.Learned counsel appearing on behalf of the Appellants would then

urge that there are contradictions and improvements in the testimonies of the

eye witnesses and save and except PW-1, the rest have turned hostile. It

would be urged that therefore, it would not be prudent to base conviction

thereupon.

14.Per contra, Ms. Radhika Kolluru, learned Additional Public

Prosecutor appearing on behalf of the State, whilst supporting the impugned

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judgment in its entirety, would urge that the findings of the Ld. Trial Court

require no interference.

15.It would be asseverated that the prosecution has established beyond

reasonable doubt, by way of cogent medical evidence, as well as, the

evidence of the eye witnesses that the appellants have, with common

intention, committed murder of the deceased and therefore, the mandate of

the provisions of Section 302 read with Section 34 of the IPC is satisfied in

the facts of the present case.

16.We have heard counsel appearing on behalf of the parties and perused

the evidence on record.

17.On the facts of the present case, the court is confronted with the

solitary question as to whether there was an intention to kill the victim

thereby making out a clear case of an offence under section 302 IPC or was

there an intention to merely cause bodily injury which would fall within the

pale of section 304 Part II thereof.

18.For the sake of completeness,we may, at this stage, briefly

recapitulate the relevant provisions of Section 300 and Section 304 IPC :

“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—

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(Secondly)—If it is done with the intention of causing

such bodily injury as the offender knows to be likely to

cause the death of the person to whom the harm is caused,

or—

(Thirdly)—If it is done with the intention of causing

bodily injury to any person and the bodily injury intended

to be inflicted is sufficient in the ordinary course of nature

to cause death, or—

(Fourthly)—If the person committing the act knows that it

is so imminently dangerous that it must, in all probability,

cause death or such bodily injury as is likely to cause death,

and commits such act without any excuse for incurring the

risk of causing death or such injury as aforesaid.

Exception 1.—When culpable homicide is not

murder.—Culpable homicide is not murder if the offender,

whilst deprived of the power of self-control by grave and

sudden provocation, causes the death of the person who

gave the provocation or causes the death of any other

person by mistake or accident.

The above exception is subject to the following

provisos—

First.—That the provocation is not sought or

voluntarily provoked by the offender as an excuse for

killing or doing harm to any person.

Secondly.—That the provocation is not given by

anything done in obedience to the law, or by a public

servant in the lawful exercise of the powers of such public

servant.

Thirdly.—That the provocation is not given by anything

done in the lawful exercise of the right of private defence.

Explanation.—Whether the provocation was grave and

sudden enough to prevent the offence from amounting to

murder is a question of fact.”

“304. Punishment for culpable homicide not amounting

to murder

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Whoever commits culpable homicide not amounting to

murder shall be punished with imprisonment for life, or

imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine, if the act

by which the death is caused is done with the intention of

causing death, or of causing such bodily injury as is likely

to cause death,

or with imprisonment of either description for a term which

may extend to ten years, or with fine, or with both, if the

act is done with the knowledge that it is likely to cause

death, but without any intention to cause death, or to cause

such bodily injury as is likely to cause death.”

19.The Hon’ble Supreme Court of India inAbdul Waheed Khan and

Ors.v.State of A.P.reported as(2002) 7 SCC 175, whilst appreciating the

distinction between Section 299 and Section 300 of the IPC and in

particular, clause (3) of Section 300 thereof, reiterated the principle laid

down in the celebrated decision inVirsa Singh v. State of Punjabreported

asAIR 1958 SC 465as follows :

“11. This brings us to the crucial question as to which was

the appropriate provision to be applied. In the scheme of

IPC culpable homicide is the genus and “murder”, its

specie. All “murder” is “culpable homicide” but not vice

versa. Speaking generally, “culpable homicide” sans

“special characteristics of murder is culpable homicide not

amounting to murder”. For the purpose of fixing

punishment, proportionate to the gravity of the generic

offence, IPC practically recognizes three degrees of

culpable homicide. The first is, what may be called,

“culpable homicide of the first degree”. This is the gravest

form of culpable homicide, which is defined in Section 300

as “murder”. The second may be termed as “culpable

homicide of the second degree”. This is punishable under

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the first part of Section 304. Then, there is “culpable

homicide of the third degree”. This is the lowest type of

culpable homicide and the punishment provided for it is

also the lowest among the punishments provided for the

three grades. Culpable homicide of this degree is

punishable under the second part of Section 304.

12. The academic distinction between “murder” and

“culpable homicide not amounting to murder” has

always vexed the courts. The confusion is caused, if

courts losing sight of the true scope and meaning of the

terms used by the legislature in these sections, allow

themselves to be drawn into minute abstractions. The

safest way of approach to the interpretation and

application of these provisions seems to be to keep in

focus the keywords used in the various clauses of

Sections 299 and 300. The following comparative table

will be helpful in appreciating the points of distinction

between the two offences:

Section 299 Section 300

A person commits culpable

homicide if the actby which the

death is caused is done—

Subject to certain exceptions culpable homicide

is murder if the act by which the death is cause is

done—

INTENTION

(a)with the intention

of causing death; or

(1)with the intention of causing death; or

(b) withthe intention

of causing such

bodily injury as is

likely to cause

death; or

(2)with the intention of causing such bodily injury as the

offender knows to be likely to cause the death of the

person to whom the harm is caused; or

(3)with the intention ofcausing bodily injury to any

person and the bodily injury intended to be inflicted is

sufficient in the ordinary course of nature to cause

death;or

KNOWLEDGE

(c)with the knowledge

that the act is likely

to cause death.

(4)with the knowledge that theact is so imminently

dangerous that it must in all probability cause death or

such bodily injury as is likely to cause death, and

commits such act without any excuse for incurring the

risk of causing death or such injury as is mentioned

above.

13. Clause (b) of Section 299 corresponds with clauses (2)

and (3) of Section 300. The distinguishing feature of the

mens rea requisite under clause (2) is the knowledge

possessed by the offender regarding the particular victim

being in such a peculiar condition or state of health that the

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internal harm caused to him is likely to be fatal,

notwithstanding the fact that such harm would not in the

ordinary way of nature be sufficient to cause death of a

person in normal health or condition. It is noteworthy that

the “intention to cause death” is not an essential

requirement of clause (2). Only the intention of causing the

bodily injury coupled with the offender's knowledge of the

likelihood of such injury causing the death of the particular

victim, is sufficient to bring the killing within the ambit of

this clause. This aspect of clause (2) is borne out by

Illustration (b) appended to Section 300.

14. Clause (b) of Section 299 does not postulate any such

knowledge on the part of the offender. Instances of cases

falling under clause (2) of Section 300 can be where the

assailant causes death by a fist-blow intentionally given

knowing that the victim is suffering from an enlarged liver,

or enlarged spleen or diseased heart and such blow is likely

to cause death of that particular person as a result of the

rupture of the liver, or spleen or the failure of the heart, as

the case may be. If the assailant had no such knowledge

about the disease or special frailty of the victim, nor an

intention to cause death or bodily injury sufficient in the

ordinary course of nature to cause death, the offence will

not be murder, even if the injury which caused the death,

was intentionally given.In clause (3) of Section 300,

instead of the words “likely to cause death” occurring in

the corresponding clause (b) of Section 299, the words

“sufficient in the ordinary course of nature” have been

used. Obviously, the distinction lies between a bodily

injury likely to cause death and a bodily injury

sufficient in the ordinary course of nature to cause

death. The distinction is fine but real and if overlooked,

may result in miscarriage of justice. The difference

between clause (b) of Section 299 and clause (3) of

Section 300 is one of degree of probability of death

resulting from the intended bodily injury. To put it

more broadly, it is the degree of probability of death

which determines whether a culpable homicide is of the

gravest, medium or the lowest degree. The word

“likely” in clause (b) of Section 299 conveys the sense of

probable as distinguished from a mere possibility. The

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words “bodily injury … sufficient in the ordinary

course of nature to cause death” mean that death will

be the “most probable” result of the injury, having

regard to the ordinary course of nature.

15.For cases to fall within clause (3), it is not necessary

that the offender intended to cause death, so long as the

death ensues from the intentional bodily injury or

injuries sufficient to cause death in the ordinary course

of nature.Rajwant Singhv.State of Kerala[AIR 1966

SC 1874 : 1966 Cri LJ 1509] is an apt illustration of this

point.

16.InVirsa Singhv.State of Punjab[AIR 1958 SC 465 :

1958 Cri LJ 818] Vivian Bose, J. speaking for the Court,

explained the meaning and scope of clause (3). It was

observed that the prosecution must prove the following

facts before it can bring a case under Section 300

“thirdly”. First, it must establish quite objectively, that

a bodily injury is present; secondly, the nature of the

injury must be proved. These are purely objective

investigations. Thirdly, it must be proved that there was

an intention to inflict that particular injury, that is to

say, that it was not accidental or unintentional or that

some other kind of injury was intended. Once these

three elements are proved to be present, the enquiry

proceeds further, and fourthly, it must be proved that

the injury of the type just described made up of the

three elements set out above was sufficient to cause

death in the ordinary course of nature. This part of the

enquiry is purely objective and inferential and has

nothing to do with the intention of the offender.

17.The ingredients of clause “thirdly” of Section 300

IPC were brought out by the illustrious Judge in his

terse language as follows: (AIR p. 467, para 12)

“12. To put it shortly, the prosecution must prove the

following facts before it can bring a case under Section

300 ‘thirdly’;

First, it must establish, quite objectively, that a bodily

injury is present;

Secondly, the nature of the injury must be proved;

These are purely objective investigations.

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Thirdly, it must be proved that there was an intention

to inflict that particular bodily injury, that is to say,

that it was not accidental or unintentional, or that some

other kind of injury was intended.

Once these three elements are proved to be present, the

enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type

just described made up of the three elements set out

above is sufficient to cause death in the ordinary course

of nature. This part of the enquiry is purely objective

and inferential and has nothing to do with the intention

of the offender.”

18.The learned Judge explained the third ingredient in

the following words (at p. 468): (AIR para 16)

“The question is not whether the prisoner intended to

inflict a serious injury or a trivial one but whether he

intended to inflict the injury that is proved to be

present. If he can show that he did not, or if the totality

of the circumstances justify such an inference, then, of

course, the intent that the section requires is not proved.

But if there is nothing beyond the injury and the fact

that the appellant inflicted it, the only possible inference

is that he intended to inflict it. Whether he knew of its

seriousness, or intended serious consequences, is neither

here nor there.The question, so far as the intention is

concerned, is not whether he intended to kill, or to

inflict an injury of a particular degree of seriousness,

but whether he intended to inflict the injury in

question; and once the existence of the injury is proved

the intention to cause it will be presumed unless the

evidence or the circumstances warrant an opposite

conclusion.”

19.These observations of Vivian Bose, J. have become

locus classicus. The test laid down byVirsa Singh

case[AIR 1958 SC 465 : 1958 Cri LJ 818] for the

applicability of clause “thirdly” is now ingrained in our

legal system and has become part of the rule of law.

Under clause thirdly of Section 300 IPC, culpable

homicide is murder, if both the following conditions are

satisfied i.e. (a) that the act which causes death is done

with the intention of causing death or is done with the

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intention of causing a bodily injury; and (b) that the

injury intended to be inflicted is sufficient in the

ordinary course of nature to cause death. It must be

proved that there was an intention to inflict that

particular bodily injury which, in the ordinary course

of nature, was sufficient to cause death viz. that the

injury found to be present was the injury that was

intended to be inflicted.

20.Thus, according to the rule laid down inVirsa Singh

case[AIR 1958 SC 465 : 1958 Cri LJ 818] even if the

intention of the accused was limited to the infliction of a

bodily injury sufficient to cause death in the ordinary

course of nature, and did not extend to the intention of

causing death, the offence would be murder. Illustration

(c) appended to Section 300 clearly brings out this

point.

21. Clause (c) of Section 299 and clause (4) of Section 300

both require knowledge of the probability of the act causing

death. It is not necessary for the purpose of this case to

dilate much on the distinction between these corresponding

clauses. It will be sufficient to say that clause (4) of Section

300 would be applicable where the knowledge of the

offender as to the probability of death of a person or

persons in general as distinguished from a particular person

or persons — being caused from his imminently dangerous

act, approximates to a practical certainty. Such knowledge

on the part of the offender must be of the highest degree of

probability, the act having been committed by the offender

without any excuse for incurring the risk of causing death

or such injury as aforesaid.

22. The above are only broad guidelines and not cast-iron

imperatives. In most cases, their observance will facilitate

the task of the court. But sometimes the facts are so

intertwined and the second and the third stages so

telescoped into each other, that it may not be convenient to

give a separate treatment to the matters involved in the

second and third stages.”

(Emphasis supplied)

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20. The Apex Court in a catena of decisions has eloquently

elucidated as to when the nature of an offence committed by an accused falls

under the purview of Section 302 IPC and Section 304 Part II thereof,

respectively. InSatish Narayan Sawant v. State of Goareported as(2009)

17 SCC 724,the Hon’ble Supreme Court of India observed as follows :

“35.Section 299 and Section 300 IPC deal with the

definition of culpable homicide and murder respectively.

Section 299 defines culpable homicide as the act of causing

death (i) with the intention of causing death, or (ii) with the

intention of causing such bodily injury as is likely to cause

death, or (iii) with the knowledge that such act is likely to

cause death. The bare reading of the section makes it

crystal clear that the first and the second clauses of the

section refer to intention apart from the knowledge and the

third clause refers to knowledge alone and not intention.

Both the expressions “intent” and “knowledge” postulate

the existence of a positive mental attitude which is of

different degrees. The mental element in culpable homicide

i.e. mental attitude towards the consequences of conduct is

one of intention and knowledge. If that is caused in any of

the aforesaid three circumstances, the offence of culpable

homicide is said to have been committed.

36.Section 300 IPC, however, deals with murder although

there is no clear definition of murder provided in Section

300 IPC. It has been repeatedly held by this Court that

culpable homicide is the genus and murder is species and

that all murders are culpable homicide but not vice versa.

Section 300 IPC further provides for the exceptions which

will constitute culpable homicide not amounting to murder

and punishable under Section 304. When and if there is

intent and knowledge then the same would be a case of

Section 304 Part I and if it is only a case of knowledge and

not the intention to cause murder and bodily injury, then

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the same would be a case of Section 304 Part II. The

aforesaid distinction between an act amounting to murder

and an act not amounting to murder has been brought out in

the numerous decisions of this Court.”

21.At this stage,it would be profitable to briefly encapsulate the legal

position that emerges from a careful consideration of the above discussion,

in light of the facts and circumstances of the present case, as follows :

a)If the subject injury is intended and is not caused by an

accident or otherwise is not unintentional and the injury is

sufficient in the ordinary course of nature to cause death,

then the same would fall under Section 300 clause (3) and

be punishable under Section 302 of IPC;

b)If there is intent and knowledge to cause a bodily injury

likely to cause death, then the same would be a case of

Section 304 Part I of IPC; and

c)If it is only a case of knowledge and not intention to cause

a bodily injury likely to cause death, then the same would

fall under Section 304 Part II of IPC.

22.In the present case, the material public witnesses implicating the

Appellants are eyewitnesses to the incident who have correctly identified the

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assailants in the crime and corroborated with the prosecution story. PW-1 is

the star witness of the prosecution, who has identified the Appellants and

assigned specific roles to them in the commission of the crime. Therefore, it

would be crucial to first examine the testimony of PW-1.

23.In relation to the sequence of events, PW-1 has deposed that on the

night of 30.03.2011 around 9:40 PM, while some of the residents ofthegali

were watching a cricket match at the spot, an altercation broke out between

them and a group of 2-3 boys, who came to the crime spot on two

motorcycles. Although the matter was pacified and the police was informed

of the same, around 15-20 minutes later, a group of 8-10 boys, armed with

knives, glass bottles, dandas, baseball bat and cricket wicket arrived at the

spot and started attacking the residents present in thegaliindiscriminately.

Appellant No.2 held a baseball bat in one hand and a knife in the other and

caught hold of the deceased. Appellant Nos. 1 and 3 inflicted the knife blows

on the deceased. A resident of the Gali, namely, Naveen Malhotra @ Akshay

@ Vicky (PW-12) intervened in order to save the deceased from their

clutches and suffered a knife blow in the abdomen at the hands of Appellant

No. 2. in the scuffle.

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Apart from the Appellants, the other assailants involved in the crime

also came armed with knives and inflicted knife blows on the residents of the

galiincluding PW-8, PW-14 and pelted glass bottles on them. He further

deposed that two other assailants present on the spot were apprehended by

the public and beaten up. He also stated that he took out the key from the

ignition of the bike on which Appellant No.2 tried to flee.

24.The relevant portion of the testimony of the injured witness, PW-12,

who sustained injuries at the hands of Appellant No.2, corroborating the

testimony of PW-1 is as under:

“I have been residing at the aforesaid address since birth. I

have been doing the work of driver for last about 12 years.

On 30.03.2011, I along with other persons were watching

Cricket Match on television at the ground floor in the house

of Kuldeep Thakur bearing no. 28, Shankar Nagar situated

in Gali No.4. Cricket match was going on between India

and Pakistan. As and when wickets of Pakistan were

falling, children and public persons were expressing their

happiness by bursting crackers. At about 9:40 pm, three

boys came on a bike. Bike was being driven by accused

Yash Gupta @ Chhoti, who is present in the court today

(correctly identified). Two more boys of lesser age group

were sitting on th bike as pillion riders. Accused Yash

Gupta was driving the bike in rash and negligent manner.

On this, uncle Subhash Chand Malhotra stopped him and

asked him to drive the bike slowly stating that kids were

sitting as pillion rider. On this, accused Yash Gupta @

Chhoti became furious and left the spot. After some time,

accused Yash Gupta again came along with 3-4 friends and

quarreled with us. I do not know the friends of accused

Yash Gupta @ Chhoti who had come along with him. The

Crl. A. 709/2018 Page 20 of 37

locality people intervened and put the quarrel at rest and

left the place again. We also made telephone call on 100

number. Police came there.After about 5 minutes,

police also left the spot. I do not recollect as to who had

made the telephone call on 100 number. After about 5

minutes, accused Yash Gupta @ Chhoti came along

with Billu @ Vivek Kumar Sharma who is present in

the court today (witness correctly identified) and some

other persons whose names I cannot tell but I can

identify them. I identify accused Vipin who had also

come with these two accused. I cannot identify any

other accused present in the court today. I had not seen

remaining accused persons present in the court today as

I had received stab injury.

Accused Yash Gupta, Billu and Vipin along with

other persons had come on foot, while running towards

us. They were having dandas, knives and baseball bats

with them. It was 9:45 pm. They started beating us

with their respective weapons/arms. Accused Vipin

Sharma gave knife blow to Gaurav Panesar. On this, I

caught hold accused Vipin Sharma and asked Gaurav

to run away from there. In the mean time, accused

Billu @ Vivek Kumar Sharma stabbed me in my left

side abdomen. After I received stab injury, accused

Vipin Sharma also stabbed me in the front abdomen.

Someone assaulted me on my head with some object

from back side and I became unconscious.When I

regained consciousness, I found myself in police jeep and

at that time, accused Mahadev Rawat and accused Rajesh

Sharma were also found sitting the police jeep. Accused

Mahadev Rawat and accused Rajesh Sharma, both are also

present in the court today (witness correctly identified). I

was taken to GTB hospital. Later on, I came to know that

Gaurav had expired. I do not want to say anything more

about this case.”

(emphasis supplied)

25.PW-15, another injured witness who was stabbed by Appellant Nos. 1

and 3, supported the prosecution’s case and deposed as follows:

Crl. A. 709/2018 Page 21 of 37

“I have been residing at the aforesaid address since

childhood. In the year 2011, I was doing private job. On

30.03.2011, I along with other boys of our gali were

watching cricket match on television which was going on

between India and Pakistan which was installed at the shop

of H.No.28. As and when wickets of Pakistan were fallen,

said boys were expressing their happiness by bursting

crackers. At about 9:40 pm, three boys came in our gali on

motorcycle while driving the said motorcycle in rash and

negligent manner and pillion riders of the motorcycle were

of tender age. Subhash Chand old person of our gali

stopped the motorcycle rider and advised them to drive the

motorcycle properly. On this, motorcycle rider misbehaved

with Subhash Chand and became furious. Said motorcycle

was being driven by accused Yash Gupta @ Chhoti who is

present in the court today (witness correctly identified).

Thereafter, accused Yash Gupta along with pillion riders

left the spot by giving threat to boys of our gali by saying to

see us after some time. Due to said threat, Kuldeep Thakur

made telephone call on 100 number to the police. Police

came there but police went back because said motorcycle

rider had already left the spot.

After departure of the police from the spot, about

10 boys armed with dandas, cricket wicket, glass bottles,

baseball bats, knives and chhuri came on foot as well as

on motorcycle and they started assaulting all of us.

Name of those assailants were revealed as Mahadev,

Rajesh, Shanky (Juvenile), Vipin Sharma, Yash Gupta,

Raunak (PO) and Gaurav (brother of Rajesh). These

accused persons were residents of Shanti Mohalla,

Gandhi Nagar and I was knowing them before the

incident. All the five accused persons present in the

court today (withness correctly identified them) had

assaulted us. Accused Billu @ Vivek Sharma, accused

present in the court today (witness correctly identified)

was exhorting the other accused persons to kill us.

Accused Billu was armed with knife. I sustained

stab injury in my abdomen in this incident as a result of

which I fell down and became unconsciousness. I

regained consciousness in the hospital.

Crl. A. 709/2018 Page 22 of 37

I was caught hold by accused Vipin whereas

accused Gaurav stabbed me. I do not want to say

anything more about this case.”

(emphasis supplied)

26.A bare perusal of the testimony of PW-1, the star witness of the

prosecution, as well as, other public witnesses would reveal that there was an

altercation between the latter and a group of three boys who reached the

spot, initially unarmed, on two motorcycles around 9:40 PM whereafter,

they left the spot, extending threats to them. After 15-20 minutes to the

incident, the assailants arrived at the spot, armed with sharp-edged weapons

and attacked the public witnesses, as well as, inflicted grave injuries on them

and caused death of the deceased.

27.The Appellants arrived together at the crime spot post the altercation,

armed with baseball bats, glass bottles, knives etc. Appellant No. 2 caught

hold of the deceased and Appellant Nos. 1 and 3 inflicted the fatal blow on

the abdomen of the deceased. Appellant No. 2 also gave a knife blow on the

abdomen of PW-12, besides attacking the public witnesses indiscriminately.

Therefore,the offence was found to be committed with enough time to

meditate on the action to inflict serious injuries on the public witnesses

present at the spot.

Crl. A. 709/2018 Page 23 of 37

28.This circumstance, coupled with the threat extended by one of the

assailants to not spare the public witnesses, which evidence to this effect

remains unassailed,points unerringly towards the due deliberation on the

part of the assailants, including the Appellants, enraged by the antecedent

altercation that ensued between them and the public witness;as also elicit

that the Appellants shared the common intention to cause fatal injuries to the

public persons; and that, the Injury No. 2 inflicted upon the abdomen of the

deceased was a consequence of their common intention, which was

sufficient in the ordinary course of nature to cause death, thus satisfying the

mandate of Sections 302 and 34 IPC in the present case.

29.Furthermore, it would be observed thatno plausible reason is offered

by the Appellant Nos. 1 and 3 forrefusal to participate in TIP which would

be sufficient to draw an adverse inference against them.

30.The Hon’ble Supreme Court of India inState of Rajasthan v. Dhool

Singhreported as(2004) 12 SCC 546, whilst promulgatinginter aliathe

nature of injury, part of the body where it is caused and the weapon used in

causing such injury to be the indicators of intention to establish an offence

under Section 302 of IPC observed as follows :

Crl. A. 709/2018 Page 24 of 37

“13. … It is the nature of injury, the part of body where

it is caused, the weapon used in causing such injury which

are the indicators of the fact whether the respondent caused

the death of the deceased with an intention of causing death

or not. In the instant case it is true that the respondent had

dealt one single blow with a sword which is a sharp-edged

weapon measuring about 3 ft in length on a vital part of the

body, namely, the neck. This act of the respondent though

solitary in number had severed sternocleidal muscle,

external jugular vein, internal jugular vein and common

carotid artery completely leading to almost instantaneous

death. Any reasonable person with any stretch of

imagination can come to the conclusion that such injury on

such a vital part of the body with a sharp-edged weapon

would cause death. Such an injury in our opinion not only

exhibits the intention of the attacker in causing the death of

the victim but also the knowledge of the attacker as to the

likely consequence of such attack which could be none

other than causing the death of the victim. The reasoning of

the High Court as to the intention and knowledge of the

respondent in attacking and causing death of the victim,

therefore, is wholly erroneous and cannot be sustained.”

31.PW 26, after conducting postmortem on the body of the deceased,

opined the cause of death to be“hemorrhagic shock and its complications

due to stab wound on the abdomen”. The injuries found on the body of the

deceased are extracted hereinbelow :

“1.Incised stab wounds measuring 3cms X 0.2cms X

9.5 cms obliquely placed is present on the left lower side

of the chest 26.5 cms below the clavicle & 6 cm from the

midline.The direction of the track is backwards, medially

and upwards. On exploration of the woundtrack, it is seen

cutting the abdominal walls muscles. Inter costal space,

left dome of the diaphragm & upper end of the stomach.

The lower medial angle of the stab wound is sharp & upper

lateral is blunt.

Crl. A. 709/2018 Page 25 of 37

2.Incised stab wound of size measuring 3 cms x 0.2

cms x 11.05 cms, horizontally oriented is present on the

left upper side of the abdomen. The medial end is

located 6 cms from mid line & 10 cms above the

anterior superior iliac spine.The wedge shaped

wound’s medial angle is sharp and lateral end is blunt.

On further exploration of the wound track which is

directed backwards and medially, omental tissue is seen

lacerating through the wound track, inserting

abdominal muscles peritonium cutting layers of the

small intestine and the mesenteric vessels (of the

jejunum) through and through.

3.Reddish colored abrasion measuring 2 cms X 1.5

cm is present on the lateral aspect of the right forearm

in the backside 5.5 cm below the lateral epicondyle, 3

cm from its midline.

4.Reddish colored abrasion measuring 1 cm X 0.4 cm

is present on the outer aspect of the right forearm 13 cm

below the elbow.

5. Reddish colored abrasion measuring 1 cm X

0.4 cm is present on the medial aspect of the right elbow 2

cms below the olecranon process.

6. Reddish colored abrasion measuring 2 cms X1 cm is

present on the upper aspect of the knee joint just above the

patella on the right side.

7.Incised wound measuring 4.1cms X 0.2 cms is

present on the right side of the scalp, obliquely oriented,

6cms from the midline & 12cms behind orbital ridge.

The depth being 1.6 cms with bone being intact & its

margin are clean.

8. Incised wound measuring 4.5 cms X 0.2 cms is present

on the right frontal region of the scalp, 3cms from midline

& from right orbital ridges 15cms behind it.

9. Reddish colored abrasion 0.5cms X 0.2 cms is present

on the dorsum of the right hand 4cms below the wrist

joint.”

(emphasis supplied)

Crl. A. 709/2018 Page 26 of 37

32.In this behalf, the intention to kill can be ascertained from the medical

evidence coupled with the magnitude of the injury caused with the sharp-

edged weapon. The stab wound on the body of the deceased measured 3cms

x 0.2cms x 9.5cms deep and the cause of death is opined to be “hemorrhagic

shock and its complications due to stab wound on the abdomen”. The force

with which the fatal stab/injury was caused by a dangerous sharp-edged

weapon i.e. the knife, leads to an inescapable conclusion that the same is

sufficient inthe ordinary course of nature to cause death. A fortiori, the

ferocity of the attack is further emphasized by the post mortem report [Ex.

PW- 26/A] which reveals that besides the fatal stab wound, multiple other

blows were also inflicted on the body of the deceased. Thus, in the facts and

circumstances of the present case, there can be no manner of doubt that the

injury found to be present on the deceased was the injury intended to be

inflicted.

33.Besides the injuries inflicted on the deceased, the MLCs of the

injured public witnesses namely, PW-8, PW-12, PW-14, PW-15 exhibited as

Ex. PW- 27/A, Mark X 1, PW-30/A and PW-30/B reflect that the injuries

sustained by the latter were also found to be grievous in nature.

Crl. A. 709/2018 Page 27 of 37

34.It is a settled legal positionquadiscrepancies in the evidence of

witnesses that unless the discrepancies are of material dimension, the same

should not be used to jettison the evidence of such witnesses in its entirety.

In this behalf, reliance is placed on a decision of the Hon’ble Supreme Court

of India inState of U.P. v. Nareshreported as(2011) 4 SCC 324, which

observed as follows:

“ 30. In all criminal cases, normal discrepancies are bound

to occur in the depositions of witnesses due to normal

errors of observation, namely, errors of memory due to

lapse of time or due to mental disposition such as shock

and horror at the time of occurrence. Where the omissions

amount to a contradiction, creating a serious doubt about

the truthfulness of the witness and other witnesses also

make material improvement while deposing in the court,

such evidence cannot be safe to rely upon. However, minor

contradictions, inconsistencies, embellishments or

improvements on trivial matters which do not affect the

core of the prosecution case, should not be made a ground

on which the evidence can be rejected in its entirety. The

court has to form its opinion about the credibility of the

witness and record a finding as to whether his deposition

inspires confidence.

“9. Exaggerations per se do not render the evidence brittle.

But it can be one of the factors to test credibility of the

prosecution version, when the entire evidence is put in a

crucible for being tested on the touchstone of credibility.”

[Ed.: As observed in Bihari Nath Goswami v. Shiv Kumar

Singh, (2004) 9 SCC 186, p. 192, para 9.]

Therefore, mere marginal variations in the statements of a

witness cannot be dubbed as improvements as the same

may be elaborations of the statement made by the witness

earlier. The omissions which amount to contradictions in

material particulars i.e. go to the root of the case/materially

affect the trial or core of the prosecution's case, render the

Crl. A. 709/2018 Page 28 of 37

testimony of the witness liable to be discredited. [Vide

State v. Saravanan [(2008) 17 SCC 587 : (2010) 4 SCC

(Cri) 580 : AIR 2009 SC 152] , Arumugam v. State [(2008)

15 SCC 590 : (2009) 3 SCC (Cri) 1130 : AIR 2009 SC 331]

, Mahendra Pratap Singh v. State of U.P. [(2009) 11 SCC

334 : (2009) 3 SCC (Cri) 1352] and Sunil Kumar

Sambhudayal Gupta (Dr.) v. State of Maharashtra [(2010)

13 SCC 657 : JT (2010) 12 SC 287] .] ”

(Emphasis supplied)

35.The Ld. Trial Court on a conjoint reading of the testimonies of all the

eye witnesses, rejected the contention to the effect that the prosecution case

suffers from glaring contradictions and observed as follows :

“73.From the material on record as well as deposition of

the witnesses, PW-1 Kuldeep Thakur’s testimony is

unrebutted on the issue that the two motorcycles rided by

2-3 persons at 9:45 pm and they had some altercations and

while going away from the gali were intimated to the

public persons including PW Subhash, Kuldeep Thakur etc.

One of the person who came on the motorcycle is accused

Yash Gupta who is correctly identified. Later on 8-10 boys

came on motorcycles armed with wickets, lathies and

baseball bats, glass bottles etc. and suddenly attacked with

the said weapons, the accused Vivek Sharma holding

baseball bat in one hand and knife in the other and caught

hold Gaurav, deceased. Accused Gaurav Sharma and

Vipin inflicted knife blow on the person of said Gaurav.

Accused Billu gave a knife blow in the abdomen of Vicky.

Billu also shouted that the Gaurav should not be spared and

caught hold of him. Accused Gaurav Sharma and Vipin

chased Gaurav (deceased): accused Mahadev Rawat and

Rajesh Sharma gave beating to Sanjeev Malhotra with

baseball bat and wicket. Accused Shanky stabbed Shivam

in his abdomen. One of them also gave knife blow on

Neeraj inside his house. Accused Yash Gupta started

pelting glass bottles upon them. Abhishek, Neeraj

Chanodk @ Vicky, Shivam and Kuldeep Thakur suffered

Crl. A. 709/2018 Page 29 of 37

injuries. The suggestion made to this effect about the

injuries not caused by the accused persons to the

abovenamed injured have been vehemently denied and the

role of each of the accused in the commission of the

offence has been specifically narrated. Though there is a

little bit improvement in the statement recorded before the

court but the same is natural one and the witness has

narrated the same in his own way as happened and

observed from their vivid eyes. It is categorically denied

by PW-1 Kuldeep Thakur that he did not tell the exact

position of accused person to the IO and the Draftsman no

such incident has taken place as the accused persons or that

he had signed the memos subsequently. It is also denied

that accused Yash Gupta was caught in the PS and was

implicated falsely at his instance or that he is deposing

falsely being tutored witness or that Subhash become a

false witness at his instance. It is denied that accused

Gaurav Sharma has beaten anyone or that his name has

been implicated falsely. It is also denied that he identified

accused Gaurav Sharma at the instance of the IO first time

in the court. It is also denied that name of accused Vivek

& Vipin has came to his knowledge through public he

stated that he know them as he contested elections and

name of Vipin was taken during incident. He was beaten

by accused Mahadev Rawat and Rajesh with baseball bats

and danda. It is denied that the quarrel had taken place

between him on one side and Vivek and his supporters on

the other side and due to this reason he falsely named

Vivek and his nephew in this case. It is also denied that he

was not present at the spot or that for that reason he did not

help the deceased or not intervened in the quarrel and that

he is deposing falsely.

74. PW-7 Subhash Chand, PW-8 Neeraj Chandok,

PW-12 Naveen Malhotra PW-14 Shivam Malhotra and PQ-

15 Abhishek have not denied that there is no such incident

taken place in the gali Everyone who is witness of the

occurrence has categorically testified that 8-10 boys came

there and attached with chhaku chhuri etc. on the persons

who came in their front and watching cricket match. PW-7

Subhash Chand categorically stated that- “the accuse

persons present in the court today are the same person who

Crl. A. 709/2018 Page 30 of 37

came there and attached on the persons who were watching

cricket match on the TV. My nephew and few others

received injuries because of beating of the accused persons

and one Gaurav had died….”

75. The deposition of above named witnesses have

been duly consistent and corroborated and on the contrary

there is no evidence in rebuttal to this effect. The

suggestions made to these witnesses with regard to their

identification involvement in the crime and caused no

injury had been denied.”

36.The Hon’ble Supreme Court of India inGovindaraju v. Statereported

as(2012) 4 SCC 722whilstholding thatthe evidence of a hostile witness

ought not stand effaced altogether and that the same can be accepted on a

careful scrutiny to the extent found dependable and duly corroborated by

other reliable evidence available on record,observed as follows.:

“36.It is also not always necessary that wherever the

witness turned hostile, the prosecution case must fail.

Firstly, the part of the statement of such hostile witnesses

that supports the case of the prosecution can always be

taken into consideration. Secondly, where the sole witness

is an eyewitness who can give a graphic account of the

events which he had witnessed, with some precision

cogently and if such a statement is corroborated by other

evidence, documentary or otherwise, then such statement in

face of the hostile witness can still be a ground for holding

the accused guilty of the crime that was committed. The

court has to act with greater caution and accept such

evidence with greater degree of care in order to ensure that

justice alone is done. The evidence so considered should

unequivocally point towards the guilt of the accused.”

Crl. A. 709/2018 Page 31 of 37

37.In view of the above legal position and having considered the

testimonies of the public witnesses on record which duly corroborate with

the testimony of PW-1 and further the circumstance that the statement of the

latter has remained unshattered in his cross-examination despite a few

embellishments that do not shake the case of the prosecution; it would be

apposite to hold that the testimony of PW-1, the star witness of the

prosecution is worthy of credence and inspires confidence.

38.Further, as rightly observed by the Ld. Trial Court that all the eye

witnesses, save and except PW-1, albeit having been declared hostile, have

given a consistent narration of the incident that corroborates with the

material on record. PW-7, PW-12, PW-13, PW-14 and PW-15 have duly

identified the Appellants. PW-12 has categorically assigned specific roles to

Appellant Nos. 1 and 2 whereas, PW-15 has assigned specific role to

Appellant No. 2 in the commission of the offence, barring a few minor

improvements which do not affect the core of the prosecution case. Hence,

the same ought not to be discredited and rejectedipso facto.

39.In a catena of cases, the Hon’ble Supreme Court of India has laid

down the correct position of lawquatestimony of an injured witness. In this

regard, it would be profitable to extract the following paragraphs from the

Crl. A. 709/2018 Page 32 of 37

decision of the Apex Court inAbdul Sayeed v. State of M.P.reported as

(2010) 10 SCC 259:

“Injured Witness:

28.The question of the weight to be attached to the

evidence of a witness that was himself injured in the course

of the occurrence has been extensively discussed by this

Court. Where a witness to the occurrence has himself been

injured in the incident, the testimony of such a witness is

generally considered to be very reliable, as he is a witness

that comes with a built-in guarantee of his presence at the

scene of the crime and is unlikely to spare his actual

assailant(s) in order to falsely implicate someone.

“Convincing evidence is required to discredit an injured

witness.”

29.While deciding this issue, a similar view was taken in

Jarnail Singhv.State of Punjab[(2009) 9 SCC 719 :

(2010) 1 SCC (Cri) 107] , where this Court reiterated the

special evidentiary status accorded to the testimony of an

injured accused and relying on its earlier judgments held as

under: (SCC pp. 726-27, paras 28-29)

“28. Darshan Singh (PW 4) was an injured witness. He had

been examined by the doctor. His testimony could not be

brushed aside lightly. He had given full details of the

incident as he was present at the time when the assailants

reached the tubewell. InShivalingappa Kallayanappav.

State of Karnataka[1994 Supp (3) SCC 235: 1994 SCC

(Cri) 1694] this Court has held that the deposition of the

injured witness should be relied upon unless there are

strong grounds for rejection of his evidence on the basis of

major contradictions and discrepancies, for the reason that

his presence on the scene stands established in case it is

proved that he suffered the injury during the said incident.

29. InState of U.P.v.Kishan Chand[(2004) 7 SCC 629 :

2004 SCC (Cri) 2021] a similar view has been reiterated

observing that the testimony of a stamped witness has its

own relevance and efficacy. The fact that the witness

Crl. A. 709/2018 Page 33 of 37

sustained injuries at the time and place of occurrence, lends

support to his testimony that he was present during the

occurrence. In case the injured witness is subjected to

lengthy cross-examination and nothing can be elicited to

discard his testimony, it should be relied upon (vide

Krishanv.State of Haryana[(2006) 12 SCC 459 : (2007) 2

SCC (Cri) 214] ). Thus, we are of the considered opinion

that evidence of Darshan Singh (PW 4) has rightly been

relied upon by the courts below.”

30.The law on the point can be summarised to the effect

that the testimony of the injured witness is accorded a

special status in law. This is as a consequence of the fact

that the injury to the witness is an inbuilt guarantee of his

presence at the scene of the crime and because the witness

will not want to let his actual assailant go unpunished

merely to falsely implicate a third party for the commission

of the offence. Thus, the deposition of the injured witness

should be relied upon unless there are strong grounds for

rejection of his evidence on the basis of major

contradictions and discrepancies therein.

(emphasis supplied)

40.In light of the above mentioned legal position, it would be relevant to

observe that all the public witnesses present at the spot, at the time of the

incident are eye witness to the crime, except for PW-16, who reached at the

spot after the assailants had left, on hearing noises of quarrel. Besides PW-16

and PW-7, all the other public witnesses received injuries at the hands of the

assailants whichis supported by the medical evidence on record and the

evidence of the doctors[PW-27, PW-30, PW-39 and PW-43].There is

nothing on record to show any prior enmity of the public witnesses with the

Crl. A. 709/2018 Page 34 of 37

assailants. In such circumstances,it is unlikely that they would let the actual

assailants go scot-free and implicate an innocent person. In the absence of

any convincing reasons to disbelieve an injured witness, his evidence stands

on higher footing.

41.Coming to the reliance placed by learned counsel for the Appellants

on the decisions inGurmail Singh(supra) andRadhey Shyam(supra), the

same is completely misplaced, inasmuch as, they are distinguishable on the

basis of facts and circumstances, as well as, the evidence adduced therein.

42.In the case ofGurmail Singh(supra), the Hon’ble Supreme Court of

India upheld the conviction of the appellant therein for an offence under

Section 304 Part II IPC on the ground that although there was an intention to

inflict an injury on the deceased, who was an intervener in the scuffle that

took place between the parties; and the injury was sufficient in the ordinary

course of nature to cause death, there was no evidence to prove that there

was an intention to inflict that particular bodily injury which in the ordinary

course of nature was sufficient to cause death. The same is in stark contrast

to the instant case where the totality of circumstances indicate that the bodily

injury so caused, by way of the fatal blow, as well as, multiple blows on a

Crl. A. 709/2018 Page 35 of 37

vital organ, such as, the abdomen of deceased, was the injury intended to be

inflicted and sufficient in the ordinary course of nature to cause death.

43.The reliance placed on the decision inRadhey Shyam(supra) is

clearly distinguishable on facts from the present case as the former involved

an outbreak of a sudden fight, encompassed within the meaning of Exception

4 to Section 300 IPC whereas, the present is a fit case of premeditation to

cause bodily injury sufficient in the ordinary course of nature to cause death,

falling within the meaning of Clause (3) of Section 300 IPC.

44.Insofar asthe argument advanced by the appellantto the effect that

there is nothing on record to show either the preparation or premeditation on

part of the appellants or the motive behind the crime is concerned, the same

would be of no assistance to the appellants, inasmuch as, the mandate of

Section 300 IPC does not presuppose the existence of any premeditation,

rather it postulates the existence of the element of intention to inflict

particularly the bodily injury so caused that would be sufficient in the

ordinary course of nature to cause death.

45.In sum and substance, the totality of circumstances have to be taken

into consideration in order to ascertain the nature of the offence. The events

antecedent to the incident will also have a bearing on the determination of

Crl. A. 709/2018 Page 36 of 37

whether the act responsible for causing death was done with or without an

intention of causing death or knowledge that it is likely to cause death.

46.In this behalf, in the present case, the return of the assailants

including the Appellants to the spot, armed with dangerous weapons, after

extending a threat to the public witness; and resultantly, causing Injury No. 2

on a vital organ being sufficient in the ordinary course of nature to cause

death with a shared common intention clearly and unequivocally attracts the

provision embodied in Section 300 clause (3) IPC and the corresponding

punishment in Section 302 thereof.

47.In view of the above-stated facts and circumstances, we see no

infirmity in the finding of the learned Trial Court based upon just

appreciation of the evidence in the present appeal and therefore the same

does not warrant any interference.

48.Consequently, the conviction of the Appellants as recorded in the

impugned judgment, as well as, the sentence awarded to each one of them by

way of the order on sentence, are upheld.

49.Copy of the judgment be supplied to the Appellants through the

Superintendent, Central Jail, Tihar and also be sent for updation of the

records.

Crl. A. 709/2018 Page 37 of 37

50.In view of the foregoing the present appeal lacks merit and is

dismissed with no order as to costs. Pending applications also stand disposed

off.

51.The Trial Court record be sent back.

SIDDHARTH MRIDUL

(JUDGE)

SANGITA DHINGRA SEHGAL

(JUDGE)

NOVEMBER 30, 2018/ns/as