[Cites 19, Cited by 0]
Delhi High Court
State (Nct Of Delhi) vs Harish & Anr on 7 April, 2026
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 25th February, 2026
Pronounced on: 7th April, 2026
Uploaded on: 7th April, 2026
+ CRL.A. 943/2016
STATE (NCT OF DELHI) .....Appellant
Through: Mr. Ritesh Kumar Bahri APP for
State with Mr. Lalit Luthra and Mr.
R. S. Gupta, Advs.
SI Thakur Singh, P. S. Khyala.
versus
HARISH & ANR .....Respondents
Through: Mr. Harsh Prabhakar, Mr. Dhruv
Chaudhry, Mr. Shubham Saurav and
Mr. Vijit Singh, Advs.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE MADHU JAIN
JUDGMENT
MADHU JAIN, J.
1. The present criminal appeal under Section 378 of the Code of
Criminal Procedure, 1973 (hereinafter 'CrPC') has been preferred by the
Appellant assailing the Impugned Judgement dated 20th July 2015, passed by
the ld. Additional Sessions Judge, West District, Tis Hazari Courts, Delhi,
whereby the Respondents - Rinku @ Shiv Kumar and Harish were acquitted
of the offences in Sessions Case No. 7/2011, arising out of FIR No.
210/2009, registered at P.S. Khyala under Section 307/324 read with Section
34 of the Indian Penal Code, 1860 (hereinafter 'IPC').
FACTUAL MATRIX:
2. The prosecution case emanates from an incident which allegedly took
place on the intervening night of 17/18th October 2009, during the festival of
Diwali, at C-10, Raghubir Nagar, Delhi. As per the prosecution, the incident
had its genesis in a sudden altercation when one PW- 8 Balram, who had
visited the house of the complainant PW-1 Prabhu Shyam, was returning at
about 12:30 a.m. It is alleged that at that time accused Rinku @ Shiv Kumar
demanded a cigarette from him, and upon refusal, a quarrel ensued. The
situation allegedly escalated when Rinku @ Shiv Kumar is stated to have
assaulted Balram with a danda and thereafter called co-accused Harish to
the spot. Harish is alleged to have arrived armed with a knife and, in the
course of the altercation, inflicted knife blows upon PW-1 Prabhu Shyam
when he intervened, and subsequently upon PW- 5 Ghanshyam, who also
attempted to intervene. The occurrence is thus alleged to have arisen out of a
spontaneous quarrel during the late hours of the Diwali night, and
culminated in injuries being sustained by the said persons.
3. The case was set into motion upon receipt of DD No. 14A at Police
Station Khyala at about 02:45 a.m., regarding a quarrel taking place at the
said address.
4. Pursuant to the said information, PW-12 SI Gurdeep Singh, along
with PW-9 Ct. Rajesh, proceeded to the spot of occurrence. However, upon
reaching the location, no eye-witnesses were found present and the police
officials were informed by persons gathered in the vicinity that the injured
persons had already been removed to Deen Dayal Upadhyay Hospital
(hereinafter 'DDU Hospital'). The relevant portion of the statement is
reproduced herein below:
Witness Statement in Examination in Chief
PW- 12 SI ...on the intervening night of
Gurdeep Singh 17/18.10.2009, he was on night
emergency duty and at about 02:30 AM
he received DD No,14A EX.PW12/A
regarding a quarrel at C-10, Raghubir
Nagar, Delhi. Thereafter, he along
with Ct. Rajesh reached at C-10,
Raghurbir Nagar, where no eye
witness met at that time and only the
fact that the injured were shifted to
some hospital came to their know.
Then they returned to police station.
5. Meanwhile, DD No. 17A was recorded at about 03:30 a.m., informing
the police that two persons, namely Prabhu Shyam and Ghanshyam, had
been admitted to DDU Hospital after sustaining injuries in a quarrel. Upon
receipt of the said information, the Investigating Officer reached the hospital
and sought permission from the attending doctor to record the statement of
the injured.
6. Upon being declared fit for statement, PW-1 Prabhu Shyam, the
complainant and one of the injured persons, gave his statement to the police.
In the said statement, he alleged that on the night of the incident a person
named Balram (PW-8) had come to his residence. When Balram left the
house around 12:30 a.m., accused Rinku @ Shiv Kumar demanded a
cigarette from him. Upon Balram refusing to provide a cigarette, an
altercation ensued, during which the accused allegedly assaulted him. It was
further alleged that the accused called Harish, who arrived armed with a
knife and inflicted knife injuries upon Prabhu Shyam, and when Ghanshyam
attempted to intervene, he too was stabbed. The relevant portion of the
statement made by PW- 1 Prabhu Shyam is reproduced herein below:
"...he is residing at the aforementioned address
and runs a chole bhature shop. On 17.10.2009, one
boy from his village namely Balram, came to him
to meet and when at about 12.30 AM (night) he left
his (complainantt) house for going to Uttam
Nagar, accused Rinku demanded cigarette from
him,, to which he denied while saying that he is not
having cigarette. On this Rinku started abusing
Balram and with the danda, which he was
carrying, Rinku started giving beatings to
Balram. When Balram shouted, he (complainant)
and Ghanshaym came there. Rinku also started
giving beatings to them. Rinku called Harish to
bring knife, by raising voice, and accordingly
Harish came there with knife and while abusing
them told that "aaj tumhe bataunga ki tumne kis
sey panga liya hai" and then he gave knife blow
to him (Prabhu Shyam) and when Ghanshyam
came to save him, he also gave knife blow to
Ghanshyarm. Thereafter, his brother took him to
hospital."
7. On the basis of the said statement, along with the medical documents
and surrounding circumstances, the Investigating Officer prepared a rukka
recommending registration of a case under Section 324 IPC. The rukka was
sent through PW-9 Ct. Rajesh, pursuant to which FIR No. 210/2009 was
registered at Police Station Khyala.
8. During the course of investigation, the blood-stained clothes allegedly
worn by the injured persons were seized and sealed by the Investigating
Officer. Subsequently, statements of witnesses were recorded under Section
161 CrPC, and a site plan of the place of occurrence was prepared.
9. The medical examination of the injured persons was conducted at
DDU Hospital. The MLC of Prabhu Shyam bearing No. 21018/09 (Ex. PW-
4/A) revealed multiple incised wounds allegedly caused by a sharp weapon
and the injuries were opined to be simple in nature. The MLC of
Ghanshyam bearing No. 20956/09 (Ex. PW-2/A) recorded a deep incised
wound on the right flank and the injury was later opined to be dangerous in
nature. The said MLCs are reproduced hereinbelow:
MLC of PW- 1 Prabhu Shyam
"B. By Brother with alleged H/O assault N/H/O
LOC/vomiting/EXT Bleed/ oriented O/E (On
Examination):
XXX
Injuries:
1. C/W Lt wrist on radial aspect 4X2 cm with bone
exposed.
2. C/W below chin 2X1 cm.
3. C/W upper Rt thigh lateral aspect 3X2 cm.
4. C/W left axillary line 4cm lateral to nipple 4X1
cm."
MLC of PW- 5 Ghanshyam
"Alleged H/O physical assault as told by Brother
and self. N/H/O LOC/vomiting/seizure/ENT bleed
XXX
O/E (On Examination):
Conscious, oriented
Afebrile
BP: 110/80 mm Hg
P: 80/min Regular, favorable
Chest: [Clear]
CVS: NAD clinically
CNS: [Normal]
P/A: As per local examination
L/E (Local Examination):
C/W: 4cm x 2cm over Rt flank.
Depth would be ascertained by SR Surgery.
'X' Injury- Dangerous - Rajiv."
10. The relevant medical opinion regarding the injuries are reproduced
hereinbelow:
Witness Statement in Examination in Chief
PW- 2 Dr. On 18.10-2009 at about 02:20 AM
Kumar injured Ghanshyam was brought to
Narender DDU Hospital for his medical
Mohan examination with alleged history of
physical assault, as told by self and
brought, by. On examination patient
was found conscious and oriented. On
local examination there was clean
incised wound 4 cm X 2 cm over right
flank (over the belly right side).
Patient was given primary treatment
and was referred to surgery
emergency for further examination
and management. The kind of weapon
by which injured Ghanshyam
sustained injuries was sharp. He
proved on record the MLC of injured
Ghanshyam, prepared by him, as Ex.
PW-2/A bearing his signatures at point
A.
PW- 3 Dr. Rajiv Senior Resident, General
Surgery, DDU Hospital stated that he
has seen the MLC Ex;PW-2/A in
respect of patient / injured Ghanshyam.
Ghanshyam was referred to surgery
emergency for further examination and
his case was seen by him being senior
resident. Surgery. On examination
patient was found conscious and
oriented. In systemic examination of
the abdomen of the patient, it was
tense, guarding (tenderness) and
rigidity was present. On the basis of
the abovesaid finding, patient was
admitted in surgery unit-l for further
investigation and treatment. He proved
on record the medical record (running
into fourteen pages) from surgery
department in respect of medical
treatment given to the patient
Ghanshyam in DDU Hospital, duly
attested by the Statistical Officer,
(Head of Medical Record
Department).Ex.PW-3/A (colly.). As
per the record patient Ghanshyam was
operated on 18.10.2009 in the hospital
as mentioned at page 8 of Ex.PW-3/A
and on the basis of intra operative
findings, he had opined the nature of
injuries as dangerous as mentioned in
MLC Ex. PW-2/A at point X bearing
his signatures at point X-1. He further
stated that the patient Ghanshyam was
examined by him and his general
findings given in MLC Ex.PW-2/A
are.from point Y to Y1 bearing his
signatures at point Y2.
PW- 4 Dr. Ajay Medical Officer, DDU Hospital,
sharma appeared in the court to depose on
behalf of Dr. Aditya Kaushik, Junior
Resident. He stated that he had seen
Dr. Aditya Kaushik writing and signing
during the course of official duty and
he can identify his writing and
signature. On 18.10.2009, Dr. Aditya
Kaushik examined patient Prabhu
Shyam, who was brought by his brother
with history of assault. Mr. Prabhu
Shyam sustained injury 1. 01W left
wrist on redial aspect 4x2 cm with
bone exposed, 2. CIW bellow chin 2x1
cm, 3. CIW upper left thigh lateral
aspect 3x2 cm, 4. CIW left axillary line
4 cm lateral to nipple 4x1 cm. After
giving first aid patient was referred to
surgery specialty for the. further
management vide MLC no.21018. He
proved on record the MLC prepared by
Dr. Aditya Kaushik as Ex.PW-4/A. .
11. In view of the medical opinion declaring the injury suffered by
Ghanshyam as "dangerous", Section 326 IPC was subsequently added
during the course of investigation. Upon completion of investigation, a
charge-sheet under Sections 324/326/34 IPC was filed before the court.
12. At the stage of consideration of charge, the ld. Magistrate formed the
opinion that the material on record disclosed a prima facie case under
Sections 307/324/34 IPC, and since the offence under Section 307 IPC is
triable exclusively by the Court of Sessions, the matter was committed to the
Court of Sessions. The ld. Magistrate in order dated 4th August, 2011 held as
under:
"I have considered the rival submissions and
perused the statement of Prabhu Shyam on the
basis of which FIR was registered. I have also seen
the MLCs on record wherein injuries of Ghan
Shyam opined as dangerous with sharp weapon
and injuries of Prabhu Shyam opined as simple
sharp. Hence, the material on record is sufficient
which discloses a prima facie case for the offence
u/s 307/34 and u/s 324/34 IPC against the
accused persons. Charge be framed. Charge
framed accordingly to which they pleaded not
guilty and claimed trial."
13. Upon committal, charges under Sections 307/324/34 IPC were framed
against the Respondents, to which they pleaded not guilty and claimed trial.
14. In order to prove its case, the prosecution examined twelve witnesses,
including the injured witnesses, eye-witnesses, medical experts and the
investigating officers. The principal witnesses relied upon by the
prosecution were the injured persons PW-1 Prabhu Shyam and PW-5
Ghanshyam, along with PW-7 Suresh, brother of the injured persons, and
PW-8 Balram, who was allegedly present at the time when the altercation
began.
Witness Statement in Statement in Cross
Examination in Chief Examination
PW- 1 ...Thereafter, Accused ...Accused Rinku and
Prabhu Harish along with Harish came inside his
Kumar accused Rinku stabbed house along with
Shah him with the knife on his Balram. No family
different I parts of the member of accused
body including stomach. persons came to his
His brother Ghanshyam house during the
vi/as also present in his quarrel. During the
house at that time. When quarrel Suresh came
he intervened in the downstairs at the ground
incident, both the floor and he was also
accused also stabbed beaten by the accused
Ghanshyam with knife. persons. The quarrel
took place inside his
house for 5-7 minutes.
Accused persons also
stabbed him with knife
inside his house.
XXX
He conceded that in his
statement dated
18.10.2009 it is nowhere
stated that accused
Rinku also stabbed him
with knife or he was
carrying knife. He
confirmed that till date
he has not lodged any
complaint to any
authority regarding the
fact that 10 has not
mentioned in his
statement that accused
Rinku was carrying a
knife and he also stabbed
him with knife. He
clarified that his brother
Suresh has lodged a
complaint Ex.PWI/DA in
this regard, after
consulting with him.
PW- 5 ...After meeting them, ...He first time
Ghanshyam when Balram came out saw the accused Rinku
from their house to go to on the date of incident in
his house at Uttam his house i.e. C-10,
Nagar, accused Rinku Raghubir Nagar, Delhi
caught hold of Balram When Balram came
and beaten him. Balram inside, he was alone and
rushed to their house all of them were at that
and accused Rinku time inside their house.
followed him and also At that time, Suresh was
entered their house. He sleeping at the first floor
requested Rinku not to of the house. Kundan
beat Balram, to which was with him in the
Rinku started beating house at that time when
him also. In the Balram came inside after
meantime, Rinku shouted quarelling with Rinku.
"HARISH CHAKU On confronting the
LEKAR AA". Harish witness with his
came to his house with statement Ex.PW5/D1,
two knives and he gave he stated that he had told
one of the knives to to the police in his
Rinku and with one knife statement that accused
he stabbed in his Harish came with two
abdomen. He became knifes and out of which
unconscious. Harish and he handed over one knife
Rinku also gave knife to Rinku but the same
laws to his brother was not found recorded
Prabhu Shvarn. One of therein, however, the
the knife blows given by fact of brining the knife
them on the neck of his was recorded. He further
brother Prabhu but he stated to have told to the
saved himself and the police in his statement
knife blow caused injury Ex.PW5/D1 that accused
on his chin. Before that person threatened him
Balram ran way from by saying 'BIHARION
the spot due to fear as he AAJ TUMEH HUM
was beaten with danda. JAAN SE MAAR
When the accused were DENGE but the said fact
armed with knives, is not found recorded in
Balram ran away. Both his statement Ex.PW-
the accused attacked 5/D1.
them and caused injuries
with knives in order to
kill them.
PW- 7 ... On the date of In between the incident
Suresh incident at about 12:30 of demanding of
AM when Balram came cigarette and arrival of
out from their our house accused Harish at the
for going to Uttam spot he along with
Nagar, then accused Balram remained
Rinku (correctly present in front of the
identified) demanded house of accused Rinku.
cigarette from Balram. He conceded that Rinku
Balram refused to give had not inflicted knife
cigarette to Rinku, on injuries to any injured.
which a quarrel had The incident took place
started. Accused Rinku for about 10-15 minutes
called accused Harish.
Accused Harish came at
the spot along with
knife. Accused Rinku
was having DANDA in
his hand. His brothers
Prabhu Shyam,
Ghanshyam and he
himself were present at
the spot at the time of
incident. When they tried
to intervene in the
matter, then accused
persons gave beatings to
his brothers Prabhu
Shyam and Ghanshyam.
Accused Harish inflicted
knife injuries to his
brothers Prabhu Shyam
and Ghanshyam and he
took them to DDU
Hospital. Police met him
and recorded his
statement after making
enquiry from him.
PW- 8 ...Thereafter, they came
Balram out from the house of
Suresh and Ghanshyam.
Accused Rinku was
having LATHI / DANDA
in his hand. Accused
Rinku called accused
Harish. Accused Harish
(correctly identified)
came at the spot
alongwith knife. Prabhu
Shyam, Ghanshyam and
Suresh were present at
the spot at the time of
incident. Accused Rinku
gave DANDA blow on
different parts of his
body. When Prabhu
Shyam and Ghanshyam
tried to save him then
accused persons gave
beatings to Prabhu
Shyam and Ghanshyam.
Accused Harish inflicted
knife injuries to Prabhu
Shyarri and Ghanshyam.
Suresh took Prabhu
Shyam and Ghanshyam
to DDU Hospital. Police
met him and recorded
his statement after
making inquiries from
him. He correctly
identified the LATHI /
DANDA as Ex.P-4 to be
the same vide which
accused Rinku had
caused injuries to him.
15. Upon completion of prosecution evidence, statements of the accused
were recorded under Section 313 CrPC, wherein they denied the allegations
and claimed that they had been falsely implicated.
16. The defence examined two witnesses, DW-1 Nirmala and DW-2
Manju, who sought to dispute the prosecution version and asserted that the
accused were not involved in the alleged assault. The relevant portion of the
statements are reproduced below:
Witness Statement in Examination Statement in Cross
in Chief Examination
D1 W1- ... Her son Shiv Kumar @ There was dark and
Smt. Rinku and Harish did not she could not see the
Nirmala cause any injury to Prabh|u person, who caused
Shyam and Ghanshyam. On injuries to victims.
the other hand they tired to No one had tried to
save them. Suresh, Prabhu save Prabhu Shyam,
Shyam and Ghanshyam Ghanshyam and their
have falsely implicated her relatives. She could
son Shiv Kumar @ Rinku not tell the name of
and Harish in this case to the person, who told,
extort money from them. him that,some boys
They several times visited at robbed the gambled
their house to. demand amount from Prabhu
money i.e. Rs. 20 lacs to Shyam and
change their statements but Ghanshyam and they
as her son Shiv Kumar @ also caused injuries
Rinku and Harish are to them.
innocent, they did not give XXX
that money to them. Even in She stated that she
the year 2013 Prabhu did not lodge any
Shyam, Ghanshyam and complaint anywhere
Suresh alongwith their regarding the
advocate came at their demand of money by
house after consuming victims to
liquor and threatened them compromise this
that they would implicate matter. She had seen
her son, Shiv Kumar @ the victims only once
Rinku and Harish in the at her residence
present case, if they would when they came to
not fulfill their demand. She demand money. She
also made complaint at P.S. also could not tell the
Khyala in this regard. On date and month when
17.03.2014, Prabhu Shyam the victims with their
and Ghanshyam again Advocate came to
visited their house and used their house. She did
filthy language and not make any call on
demanded Rs. 20 lacs from 100 number in this
them to compromise the regard. She could not
matter. assign any reason as
to why she had not
made any call on 100
number when the
victims along with
their Advocate came
to their house after
consuming liquor to
demand money.
D2 W1- ... Her son.Harish and Shiv
Smt. Manju Kumar @ Rinku did not
cause any injury to Prabhu
Shyam and Ghanshyam. On
the other hand they tired to
save them. Suresh, Prabhu
Shyam and Ghanshyam
have falsely implicated her
son Harish and Shiv Kumar
@ Rinku in this case to
extort money from them.
17. After appreciation of the evidence on record, the ld. Trial Court
concluded that the prosecution had failed to prove its case beyond
reasonable doubt and accordingly acquitted the accused of the charges under
Sections 307/324/34 IPC by Judgment dated 20th July, 2015. The findings of
ld. Trial Court are as under:
"...At this juncture, an important question arises if
complainant and his family members made
complaint date 20.11.2009 Ex.PW 1/DA
complaining that police has registered a wrong
FIR and if they had given a true version in their
abovementioned complaint, then why, they did not
depose in the court, as per the contents of their
complaint dated 20.11.2009 and why they
supported the story of the 10 after making material
improvements, regarding the facts, which were
neither mentioned in their complaint Ex.PWI/DA
as well as in the FIR.
15. In the light of aforesaid, both the accused
persons are entitled for an Order of acquittal in
their favour by giving them the benefit of doubt.
They both are acquitted accordingly. Their existing
Bail Bonds are extended for an another period of
six months in view of the provisions of Sec.437A
Cr.P.C."
18. During the pendency of the present appeal, it was brought to the
notice of this Court that Respondents No. 2 Rinku @ Shiv Kumar had
expired. Vide order dated 18th April, 2016, this Court recorded that
Respondents No. 2 had died and accordingly directed that his name be
deleted from the array of parties.
SUBMISSIONS ON BEHALF OF THE APPELLANT:
19. Mr. Bahri, the ld. APP submits that the incident in question occurred
on the intervening night of 17/18th October 2009 at about 12:30 a.m., during
the festival of Diwali. It is submitted that the rukka/tehrir was prepared at
about 5:45 a.m. on 18th October 2009, following which the FIR was
promptly registered. The ld. APP submits that the prompt registration of the
FIR clearly demonstrates that there was no delay or opportunity for
fabrication or deliberation, thereby lending credibility to the prosecution
version.
20. The ld. APP further submits that the prosecution has been able to
prove its case beyond reasonable doubt through the testimonies of the
material witnesses and the supporting medical evidence. It is contended that
the accused persons, being armed with knife, had attacked the injured
persons Prabhu Shyam and Ghanshyam, and the nature of the injuries
sustained clearly reflects the gravity of the attack and the intention of the
accused.
21. The ld. APP places reliance on the testimonies of PW-1 Prabhu
Shyam and PW-5 Ghanshyam, both of whom are injured witnesses
establishes the presence of the accused persons at the spot and their
participation in the act. It is argued that the injured witnesses have
consistently identified the accused persons and have supported the
prosecution case in material particulars.
22. The ld. APP further submits that the testimony of injured witnesses
carries a special evidentiary value in a criminal trial. He further submits that
there is ordinarily no reason for an injured witness to falsely implicate a
person while shielding the actual offender, particularly when the witness
himself has sustained injuries during the occurrence. In the present case,
both the injured witnesses have supported the prosecution version and their
testimonies are stated to be consistent with each other.
23. The ld. APP further submits that the prosecution version finds
complete corroboration from the medical evidence on record. The medical
examination conducted at DDU Hospital revealed that Prabhu Shyam had
sustained injuries caused by a sharp weapon which were opined to be
simple, whereas Ghanshyam had sustained a stab injury which was later
opined to be dangerous in nature.
24. It is further summitted that the ld. Trial Court erred in discarding the
prosecution case by focusing on minor discrepancies and variations in the
testimonies of the witnesses. He submits that, such minor inconsistencies are
natural in the testimony of witnesses who depose after the passage of several
years and cannot be treated as fatal to the prosecution case.
25. The ld. APP further submits that the ld. Trial Court has also failed to
properly consider the evidence led on behalf of the defence. It is submitted
that the defence evidence, particularly the testimony of D1W1, was not
subjected to a careful appreciation by the ld. Trial Court. He submits that,
the defence version that the accused persons were not involved in the
incident and had in fact attempted to rescue the injured persons appears to be
a belated and afterthought explanation, which was introduced only during
the course of the trial. It is submitted that the said defence is not supported
by any material on record and does not inspire confidence when examined in
the backdrop of the consistent testimony of the injured witnesses.
26. The ld. APP submits that the prosecution evidence, when appreciated
in its entirety, clearly establishes the culpability of the accused persons. It is
contended that the testimonies of the prosecution witnesses are trustworthy,
inspire confidence and remain substantially unshaken during cross-
examination.
27. The ld. APP also places reliance on the judgement of Supreme Court
in Shahaja v. State of Maharashtra, (2023) 12 SCC 558.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
28. Per contra, the ld. counsel for the respondents submits, that the
prosecution case itself suffers from serious inconsistencies and material
contradictions which go to the root of the matter. The testimonies of the
alleged injured eye-witnesses and other prosecution witnesses are not
consistent with each other on several material aspects including the place of
occurrence, the weapons allegedly used in the incident, and the presence of
various persons at the scene of the crime.
29. The ld. counsel submits that while the prosecution case as reflected in
the charge sheet was that accused Rinku @ Shiv Kumar assaulted with a
danda and accused Harish used a knife, the testimonies of certain
prosecution witnesses introduced an entirely different version. In particular,
PW-1 Prabhu Shyam and PW-5 Ghanshyam deposed during trial that both
accused persons were armed with knives and that accused Harish had
brought two knives and handed one of them to accused Rinku @ Shiv
Kumar. The ld. counsel submitted that these improvements are clearly
contrary to the earlier statements recorded during investigation and were not
supported by the Investigating Officer, who categorically stated that none of
the witnesses had informed him that two knives were used or that accused
Rinku @ Shiv Kumar was carrying a knife. These material improvements,
according to the respondents, render the prosecution case unreliable.
30. He further submits that there are glaring contradictions regarding the
place where the incident allegedly occurred. According to the prosecution
version in the final report, the incident took place outside the house situated
at C-10, Raghubir Nagar. However, PW-1 Prabhu Shyam deposed that the
accused persons entered his house and stabbed him inside the house. PW-5
Ghanshyam, on the other hand, stated that the stabbing took place outside
their house and not inside the premises. PW-7 Suresh Shah deposed that the
incident occurred in front of the house of accused Rinku @ Shiv Kumar.
The ld. counsel submits that such contradictory versions regarding the very
place of occurrence create serious doubt about the truthfulness of the
prosecution case.
31. The ld. counsel for the respondents also pointed out inconsistencies
regarding the presence of witnesses at the time when accused Rinku @ Shiv
Kumar allegedly demanded a cigarette from PW-8 Balram. While PW-1
Prabhu Shyam and PW-5 Ghanshyam stated that PW-8 Balram was alone at
that time, PW-7 Suresh claimed that he and one Ranjeet were present with
Balram. PW-8 Balram himself stated that one Kundan was accompanying
him at that time. These contradictory versions, according to the respondents,
demonstrate that the prosecution witnesses are not reliable and their
testimonies cannot be safely relied upon for recording a conviction.
32. It was further argued that several persons who were allegedly present
at the scene of the incident were not examined during the trial. Witnesses
such as Baljeet, Ranjeet, Kundan, Firoz and others were repeatedly
mentioned in the testimonies of prosecution witnesses, yet none of them
were examined by the prosecution. Ld. Counsel submitted that the non-
examination of these material witnesses further weakens the prosecution
case, particularly when the testimonies of the examined witnesses suffer
from significant contradictions.
33. Attention of the Court was also drawn to the complaint dated 20th
November, 2009 submitted by PW-7 Suresh to the Deputy Commissioner of
Police alleging that incorrect facts had been recorded in the FIR. It was
submitted that the said complaint introduced a materially different version of
the incident and itself demonstrates that the prosecution witnesses were not
consistent in their account of the occurrence.
34. The ld. Counsel places reliance on the judgment of the Supreme Court
in Arulvelu v. State, (2009) 10 SCC 206, wherein it was held that the
Appellate Court should be slow in setting aside a Judgment of acquittal,
particularly where two views are possible on the evidence. It was submitted
that unless the findings of the ld. Trial Court are shown to be perverse or
wholly unsustainable, interference in appeal is not warranted.
35. The ld. counsel also places on Jagir Singh v. State (Delhi), (1975) 3
SCC 562 and Shivaji Dayanu Patil v. State of Maharashtra, Supp (1) SCC
ANALYSIS AND FINDINGS:
36. The Court has considered the matter.
37. At the outset, it is necessary to reiterate the settled position governing
appeals against acquittal. The appellate court does possess the power to re-
appreciate the evidence; however, interference with an order of acquittal is
warranted only when the findings recorded by the ld. Trial court are
perverse, manifestly illegal, or wholly contrary to the evidence on record.
Where two views are reasonably possible on the basis of the evidence led,
the view favourable to the accused ought to be adopted.
38. The Supreme Court has consistently emphasised this principle in
Chandrappa v. State of Karnataka, (2007) 4 SCC 415, where the Supreme
Court consolidated the principles applicable to appeals against acquittal and
reiterated that the power to interfere must be exercised only in exceptional
cases where the judgment of acquittal is clearly unreasonable or perverse.
This Court is, accordingly, conscious that its task is not to re-appreciate
evidence as a first court but to examine whether the acquittal suffers from
any vitiating infirmity. The Supreme Court in the said case held as under:
"42. From the above decisions, in our considered
view, the following general principles regarding
powers of the appellate court while dealing with an
appeal against an order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of
such power and an appellate court on the evidence
before it may reach its own conclusion, both on
questions of fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient
grounds", "very strong circumstances", "distorted
conclusions", "glaring mistakes", etc. are not
intended to curtail extensive powers of an
appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of
"flourishes of language" to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him
under the fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal
recorded by the trial court."
39. One of the notable aspects emerging from the record is that there was
no prior enmity between the parties. The incident allegedly arose from a
trivial altercation when accused Rinku @ Shiv Kumar demanded a cigarette
from PW-8 Balram and the latter refused to provide the same. The
prosecution itself does not suggest any prior enmity or longstanding dispute
between the accused persons and the injured witnesses.
40. The absence of prior enmity does not by itself exonerate an accused
person. However, where the prosecution case rests primarily on oral
testimonies which suffer from inconsistencies, the lack of motive assumes
relevance while appreciating the overall probability of the prosecution
version.
41. In the present case, the alleged incident appears to have originated
from a sudden quarrel during the festive night of Diwali and does not appear
to have been the result of any pre-planned or premeditated conduct.
42. The Supreme Court has held that in cases where the incident arises
out of a sudden and unplanned altercation, the inference of premeditated
intention to cause death is difficult to sustain. The Supreme Court in Sudam
Prabhakar Achat v. State of Maharashtra., 2025 SCC OnLine SC 602,
held that where an assault occurs suddenly without premeditation and the
parties did not bear prior enimity toward each other, it would be
inappropriate to attribute the gravest criminal intention to the accused. The
Supreme Court in the said case held as under:
"12. From the evidence of the prosecution
witnesses itself, it is clear that the place of incident
is near the house of accused persons. The
possibility of a quarrel taking place on account of
previous enmity between the accused persons and
the deceased; and in a sudden fight in the heat of
the moment, the appellant along with the co-
accused assaulting the deceased cannot be ruled
out. It can further be seen that the weapons used
are a stick and the blunt side of the axe. These
tools are easily available in any agricultural field.
It therefore cannot be said that there was any
premeditation.
13. It is further to be noted that the appellant is
alleged to have used the stick whereas the co-
accused is said to have used the blunt side of the
axe. If their intention was to kill the deceased,
there was no reason as to why the co-accused
would not have used the sharp side of the axe.
The nature of injury and the evidence of the
prosecution witnesses would also not show that
the appellant had taken undue advantage or acted
in a cruel manner."
43. A significant infirmity in the prosecution case arises from the
contradictory versions regarding the place of occurrence. The ld. Trial Court
has noticed that: PW-1 Prabhu Shyam stated that the stabbing took place
inside his house and the quarrel continued there for 5-7 minutes. PW-5
Ghanshyam deposed that the entire incident occurred outside the house in
front of the gate. The complaint dated 20.11.2009 (Ex. PW1/DA) submitted
by PW-7 Suresh, introduced yet another location: "C Block, near Valmiki
Mandir, near Police Station Khyala." This is a materially different location
from all versions given in the various testimonies. The translated version of
the complaint dated 20.11.2009 is reproduced hereinbelow:
"...On the date 17-10-2009, a boy from our
village, Balram, came to our house from Uttam
Nagar to give Deepawali greetings. At night, after
the Deepawali prayer, when Balram, after having
dinner, started going to his home in Uttam Nagar,
my brothers Prabhu Shah and Ghanshyam went to
drop him outside; then near Police Station
Khayala, near C-Block Valmiki Mandir, Rinku, a
resident of C-13, Raghubir Nagar, along with his
paternal uncle's son Harish and paternal aunt's
son Kallu, met my brothers and the village boy
Balram at around 12:30 midnight and started
asking for a cigarette. My brothers said that we do
not smoke cigarettes, therefore we do not have
cigarettes; then he, while being stubborn, started
abusing (using foul language), and also these three
snatched all the cash of that day's earnings from
the pockets of my brothers and upon their
opposition, the village boy...
44. The Investigating Officer, PW-12 SI Gurdeep Singh, further stated in
his cross-examination that none of the witnesses had informed him that any
incident took place inside the house nor had they taken him inside the
premises to show the place of occurrence.
45. These different versions regarding the very location of the incident go
to the root of the prosecution case. The place of occurrence is a foundational
fact in any criminal prosecution and such contradictions render the
prosecution case uncertain.
46. Another major weakness in the prosecution case pertains to the
uncertainty regarding the weapon used in the alleged assault.
47. As per the original version of the prosecution reflected in the rukka
and charge sheet, accused Rinku @ Shiv Kumar was stated to be carrying a
danda, while accused Harish allegedly arrived with a knife and inflicted the
injuries. However, during the trial, the testimonies of PW-1 and PW-5
introduced a materially different version suggesting that two knives were
used and that one of the knives was handed over by Harish to Rinku @ Shiv
Kumar, after which both accused persons allegedly inflicted knife injuries.
48. This improvement is clearly contradicted by the testimony of the
Investigating Officer, who categorically stated that none of the witnesses
had informed him that two knives were used or that accused Rinku @ Shiv
Kumar was carrying a knife.
49. Further, PW-7 Suresh and PW-8 Balram both prosecution witnesses
have consistently stated that only accused Harish was carrying a knife,
whereas accused Rinku @ Shiv Kumar was carrying a danda and did not
inflict any knife injury. The alleged knife was also never recovered during
investigation, despite the disclosure statement of accused Harish.
50. The introduction of a second knife and the attribution of knife injuries
to accused Rinku @ Shiv Kumar represent a material improvement upon the
original version, one that was never disclosed to the investigating officer,
and finds no support in the charge-sheet, and is contradicted by two other
prosecution witnesses. The Supreme Court in Sunil Kumar Sambhudayal
Gupta v. State of Maharashtra, (2010) 13 SCC 657., held that where the
improvement is not in matters of detail but goes to the heart of the alleged
criminal act, it is a circumstance which substantially impairs the reliability
of the testimony. The Supreme Court in the said case held as under:
"Material contradictions
30. While appreciating the evidence, the court has
to take into consideration whether the
contradictions/omissions had been of such
magnitude that they may materially affect the trial.
Minor contradictions, inconsistencies,
embellishments or improvements on trivial matters
without effecting the core of the prosecution case
should not be made a ground to reject the evidence
in its entirety. The trial court, after going through
the entire evidence, must form an opinion about the
credibility of the witnesses and the appellate court
in normal course would not be justified in
reviewing the same again without justifiable
reasons. (Vide State v. Saravanan [(2008) 17 SCC
587 : (2010) 4 SCC (Cri) 580 : AIR 2009 SC 152].)
31. Where the omission(s) amount to a
contradiction, creating a serious doubt about the
truthfulness of a witness and the other witness
also makes material improvements before the
court in order to make the evidence acceptable, it
cannot be safe to rely upon such evidence.
(Vide State of Rajasthan v. Rajendra
Singh [(2009) 11 SCC 106 : 1998 SCC (Cri) 1605]
.)
32. The discrepancies in the evidence of
eyewitnesses, if found to be not minor in nature,
may be a ground for disbelieving and discrediting
their evidence. In such circumstances, witnesses
may not inspire confidence and if their evidence
is found to be in conflict and contradiction with
other evidence or with the statement already
recorded, in such a case it cannot be held that the
prosecution proved its case beyond reasonable
doubt. (Vide Mahendra Pratap Singh v. State of
U.P. [(2009) 11 SCC 334 : (2009) 3 SCC (Cri)
1352] )."
51. The ld. APP has emphasised on the use of a knife and the seriousness
of the injuries to contend that the accused persons intended to cause injury.
However, the mere use of a knife does not automatically establish the
intention required for an offence under Section 307 IPC.
52. The Supreme Court in Jage Ram v. State of Haryana, (2015) 11 SCC
366, held that the nature of weapon used is only one factor in determining
intention, and the surrounding circumstances, nature of injuries and overall
conduct of the accused must also be considered. The relevant paragraph
from the said case is reproduced hereinbelow:
"12. For the purpose of conviction under Section
307 IPC, the prosecution has to establish (i) the
intention to commit murder; and (ii) the act done
by the accused. The burden is on the prosecution
that the accused had attempted to commit the
murder of the prosecution witness. Whether the
accused person intended to commit murder of
another person would depend upon the facts and
circumstances of each case. To justify a
conviction under Section 307 IPC, it is not
essential that fatal injury capable of causing
death should have been caused. Although the
nature of injury actually caused may be of
assistance in coming to a finding as to the
intention of the accused, such intention may also
be adduced from other circumstances. The
intention of the accused is to be gathered from the
circumstances like the nature of the weapon used,
words used by the accused at the time of the
incident, motive of the accused, parts of the body
where the injury was caused and the nature of
injury and severity of the blows given, etc."
53. In the present case, the incident appears to have arisen out of a sudden
quarrel during the night of Diwali. The evidence on record does not clearly
establish that the accused persons had any pre-existing intention to cause
death.
54. For instance, PW-1 conceded during cross-examination that his earlier
statement did not mention that accused Rinku @ Shiv Kumar was carrying a
knife or had stabbed him. Similarly, PW-5 admitted that the statement
regarding Harish bringing two knives was not recorded in his earlier
statement to the police.
55. This Court also takes note of the fact that several persons allegedly
present at or near the scene of the incident including Baljeet, Ranjeet,
Kundan, Firoz, and others were referred to repeatedly in the testimonies of
the prosecution witnesses but were never examined during the trial.
56. The incident allegedly took place in a residential locality during
Diwali night, and several persons were stated to be present in the vicinity.
Despite this, none of the independent witnesses mentioned in the testimonies
such as Baljeet, Ranjeet, Firoz or Kundan were examined by the
prosecution.
57. The failure to examine such witnesses assumes importance in the
present case where the testimonies of the examined witnesses themselves
suffer from contradictions.
58. In view of the discussion above, this Court is of the considered
opinion that the prosecution has not been able to establish its case beyond
reasonable doubt. The inconsistencies regarding the place of occurrence, the
uncertainty about the weapon used, the improvements made in the
testimonies of key witnesses and the absence of independent corroboration
create serious doubt regarding the prosecution version.
59. The ld. Trial Court was therefore justified in granting the benefit of
doubt to the accused persons.
60. Accordingly, the present appeal filed by the State is dismissed and the
Impugned Judgment dated 20th July, 2015 passed by the ld. Trial Court is
upheld. Pending applications if any, stand disposed of.
MADHU JAIN
JUDGE
PRATHIBA M. SINGH
JUDGE
APRIL 7, 2026/P
