[Cites 23, Cited by 0]
Delhi High Court
Sanjay vs State Govt. Of Nct Of Delhi on 8 April, 2026
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 10th March, 2026
Pronounced on: 8th April, 2026
Uploaded on: 8th April , 2026
+ CRL.A. 48/2025 & CRL.M.A. 30839/2025, CRL.M.(BAIL)
88/2025
SANJAY .....Appellant
Through: Mr. B. Badrinath, DHCLSC with Mr.
Dhruv Bhardwaj, Advs.
versus
STATE GOVT. OF NCT OF DELHI .....Respondent
Through: Mr. Ritesh Kumar Bahri, APP with
Ms. Divya Yadav and Mr. Lalit
Luthra, Advs.
Mr. Rajat Manchanda, Ms. Megha
Gaur, Mr. Mayank Nautiyal, Advs.
for complainant.
WITH
+ CRL.A. 65/2025 & CRL.M.(BAIL) 115/2025
PRADEEP .....Appellant
Through: Mr. Praveen Kumar, Mr. Manoj
Kumar, Mr. Satvik Mishra, Advs.
versus
THE STATE .....Respondent
Through: Mr. Ritesh Kumar Bahri, APP with
Ms. Divya Yadav and Mr. Lalit
Luthra, Advs.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE MADHU JAIN
JUDGMENT
MADHU JAIN, J.
1. The present appeals have been preferred under Section 415 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter, 'BNSS') assailing
the impugned judgment of conviction and order on sentence dated 18th May,
2024 and 16th October, 2024 respectively passed by the ld. ASJ (FTC-02),
South East, Saket Court, Delhi whereby the Appellants have been convicted
in Sessions Case No. 1296/2016 arising out of FIR No. 255/2012 registered
at P.S. Pul Prahlad Pur, New Delhi, under Section 302/34 of the Indian
Penal Code, 1860 (hereinafter 'IPC'), holding as under:
"201. To sum up, in view of above
discussion, the prosecution has proved
beyond reasonable doubt the charge
under section 302/34 of the Indian Penal
Code against the accused persons,
Pradeep and Sanjay @ Kalia, so the
accused persons, Pradeep and Sanjay @
Kalia are found guilty of having
committed the said offence and hence,
they are convicted of offence punishable
under sections 302/34 of the Indian Penal
Code, 1860."
2. By the impugned judgment of conviction and order on sentence, the
Appellants have been sentenced to rigorous life imprisonment for the
commission of offences punishable under Section 302 read with Section 34
of the IPC, along with fine of Rs. 70,000/- . Out of the fine, a sum of Rs.
7,500/- shall be paid to the Prosecution/Respondent for the expenses
incurred by the State and a sum of Rs.30,000/- shall be given to the family
of the deceased, as part compensation. In default of payment of fine, the
Appellants shall undergo simple imprisonment for a period of 6 months.
Factual Matrix
3. On 29th August 2012, P.S. Pul Prahlad Pur, New Delhi at about 10:53
A.M., received an information vide DD No. 6A regarding a boy having been
stabbed at the petrol pump, Lal Kuan and that he was serious. The said
information was entrusted to Sub-Inspector Sunil Kumar, who along with
Constable Bhojpal reached the place of occurrence. Inspector Dharam Dev,
the officer-in-charge of the police station, also arrived at the spot along with
other police staff. At the spot, bloodstains were present on the cemented tiles
at two places and the injured person, Neeraj (the deceased) had already been
removed to the hospital by a PCR van. Upon inquiry, one boy Rajesh (PW-
1) (hereinafter 'Complainant'), who was present there, produced himself as
an eyewitness and his statement was recorded.
4. According to the police report, i.e., inter-alia, as stated by the
Complainant/Rajesh that he lived at 14, T-Huts, Kalka Stone, Lal Kuan,
M.B. Road, New Delhi and was in a private job in Municipal Corporation of
Delhi, and he stayed home due to non- availability of work. On 29th August
2012, at about 10:30 A.M., he along with his friends Neeraj, Paua and
Shahrukh were smoking cigarettes sitting on the wall of the bus stand Prem
Nagar, Lal Kuan. At that time, the Appellant/Pradeep (hereinafter
'Pradeep') came there and demanded a cigarette from him. Upon the
Complainant's refusal, Pradeep pushed him, whereupon the Complainant
came down from the wall and pushed Pradeep back, leading to an altercation
between Pradeep, deceased Neeraj and the Complainant. Thereupon,
Pradeep said "I will be back to teach you a lesson" and ran towards Babban
Dhaba, and returned to the spot carrying a vegetable-cutting knife in his
hand. He attacked the Complainant with the knife, however, the
Complainant caught hold of his hand and a scuffle ensued between deceased
Neeraj and Pradeep. In the meantime, Pradeep's younger brother, the
Appellant Sanjay @ Kalia (hereinafter 'Sanjay') came to the spot and freed
Pradeep and told him "Maar isko chaaku maar de". Pradeep attempted to
attack the Complainant, however, he ran and picked up a brick. Meanwhile,
Sanjay caught hold of Neeraj from behind and told Pradeep "Maar isko
chaaku maar de". Thereupon, Pradeep stabbed Neeraj with the knife in his
abdomen, who fell down and when the Complainant tried to lift him, his T-
shirt got blood-stained. The Complainant then ran towards Neeraj's house
and brought Neeraj's mother on the spot of incident. The Complainant
further stated that he knew both the Appellants and they, in furtherance of
their common intention, caused the death of Neeraj.
5. Inspector Dharam Dev and Sub-Inspector Sunil Kumar proceeded to
the Trauma Centre, AIIMS, New Delhi wherein they collected MLC No.
326879/12 of Neeraj, who had been declared 'brought dead'. Inspector
Dharam Dev thereupon formally inspected the dead body and found that the
stab wound was present on the chest below the left nipple. Both then
returned to the spot, meanwhile, ASI Sajjan Kumar, In-charge, Crime team
along with Photographer Constable Ashwin Kumar, also reached the spot,
inspected the crime scene and took photographs thereof. On the basis of the
statement of the Complainant, scene of crime, MLC and dead-body, a rukka
was prepared and the present case was registered under Sections 302/34
IPC, and the investigation was taken up by Inspector Dharam Dev himself.
6. The post-mortem report opined that the cause of death was
cardiogenic shock due to a stab injury to the chest, and that all the injuries
were ante-mortem in nature. The relevant post mortem report reads as under:
"J- OPINION- The cause of death to the best
knowledge and belief. Cardiogenic shock and its
complications due to incised stab wound to the
chest. All Injuries are antemortem in nature."
7. During the course of investigation, a site plan was prepared at the
instance of the Complainant, who produced his blood-stained T-shirt, which
was seized. Statements of witnesses including Shahrukh (PW-5) and Sumit
@ Paua (PW-8) were recorded, who corroborated the version of the
Complainant.
8. The statement of Babban Singh (PW-4), the owner of Babban Dhaba,
was also recorded. He stated that he had been a guard and had been running
a dhaba. He stated that the Appellants would often come to his dhaba to eat
food, on 29th August 2012, at about 10:30am, Pradeep suddenly came to his
dhaba and took away his kitchen knife, which was lying on the table. He
later came to know that Pradeep had stabbed a boy with that knife. On 11th
September 2012, a Test Identification Parade (TIP) of the recovered knife
was conducted in which the witness Babban Singh identified the knife as
belonging to his dhaba.
9. On 30th August 2012, Inspector Dharam Dev along with SI Sunil
Kumar and Head Constable Prahlad Singh went in search of the Appellants.
Pradeep was then identified at the instance of Head Constable Prahlad Singh
and thereafter he was arrested. During investigation, Pradeep confessed to
the commission of the crime. Upon interrogation, he also disclosed that he
was in a habit of taking liquor and Ganja and on the date of the incident, he
came to Prem Nagar bus stand under the influence of alcohol. There were
four boys who were smoking cigarettes. He knew the Complainant and
asked him to give a cigarette, however, the Complainant did not give him
the said cigarette and started abusing him and pushed him. Thereafter,
Pradeep got angry and brought a kitchen knife which was lying on the table
of Babban's dhaba and attacked them. He corroborated the Complainant's
statement. He further stated that after crossing the road, he fled away
towards DDA Jungle and after breaking the knife into two pieces, he threw
the same in the jungle near the gate wall. Pursuant to his disclosure
statement, the broken knife allegedly used in the offence was recovered
from the DDA jungle near the ICD/TKD area. During investigation, on 5th
September 2012, Sanjay surrendered before the Court. During interrogation,
Sanjay also confessed to committing the crime and thereafter he was
formally arrested. He admitted to being in a habit of consuming liquor and
taking tobacco. He also pointed out the place of occurrence.
10. Upon completion of the investigation, the charge-sheet was filed
before the concerned Magistrate under Sections 302/34 IPC. Vide order
dated 29th November 2012, the Magistrate took cognizance of the offence.
The case was thereafter committed to the Court of Sessions. Vide order
dated 10th January, 2013, upon considering the police report and the
documents sent along with it under Section 173 Cr.P.C, charges under
Sections 302/34 IPC were framed against Pradeep and Sanjay @ Kalia, to
which they pleaded not guilty and claimed trial.
11. During the course of the Trial, the Prosecution examined as many as
33 witnesses to establish its case. The Prosecution mainly relied upon the
testimony of three eye-witnesses to the incident, namely, the Complainant
(PW-1), (PW-5) Shahrukh, and Sumit @ Paua (PW-8). Each of these
witnesses provided a detailed ocular account of the incident, they did not
have any animus or grudge against the Appellants. For the sake of brevity,
the statements have been summarized above and have not been repeated
herein. The remaining witnesses comprised of police officials, medical
experts, forensic witnesses, public witnesses and formal witnesses.
12. The ld. Trial Court, after recording the evidence of the parties,
considered the Defence and the Prosecution cases in detail. The Appellants
examined two defence witnesses in support of their case. The first defence
witness, Roop Singh (DW1), deposed that he was a mason by profession and
that Appellant Sanjay used to work with him as a baildar. According to the
witness, on 29th of an unspecified month in 2012, Sanjay had finished his
work and returned home, however, the witness did not remember the exact
month. The second defence witness, Dheeraj Kumar (DW2), stated that on
28th August, 2012 he, along with Appellant Pradeep and two other boys, had
gone to Faridabad at about 11:00 P.M. for work as helpers and conductors
on a bus. Their work concluded at around 10:00 A.M. the following day,
after which all of them returned to their respective homes. He too did not
depose anything further relevant to the occurrence.
13. The Appellants were examined under Section 313 Cr.P.C. In their
statements, the Appellants denied the incriminating circumstances in
evidence against them and claimed to have been falsely implicated and to be
innocent.
14. The ld. Trial Court, vide the impugned judgment, convicted the
Appellants, holding that the Prosecution had proved beyond reasonable
doubt the charge under Sections 302/34 IPC and convicted the Appellants of
the same. The relevant portion of the judgment is reproduced hereinbelow
for ease of reference:
"199. There are three eye-witnesses of the incident,
namely, PW1 Rajesh (the complainant), PW5
Shahrukh and PW8 Sumit, who have given their
ocular account of this case. All the three witnesses
did not have animus or grudge against the accused
persons. The manner of the incident as described by
them is corroborated by the medical evidence which
shows the presence of injuries i.e. a stab wound of
1cm X 0.5cm on the left side of chest, having depth of
6.2 cm, attributable to a sharp weapon. From the fact
duly proved of bringing of the knife by the accused
Pradeep from the nearby Dhaba after his altercation
with the complainant Rajesh, the weapon of offence
i.e. knife used in stabbing, the manner in which the
injury was inflicted on the person of the victim, the
words uttered by the accused persons before
inflicting injuries and the part of body in which the
stab injury was inflicted, I am of the considered
opinion that death of the deceased was caused by the
accused persons with the intention of causing death
and while the accused Sanjay @ Kalia had caught
hold the injured from the back, the accused Pradeep
had stabbed the deceased with a knife in his chest
proves that both the accused persons had acted in
concert. Further, the accused persons have not been
able to spell out any plausible reason for their false
implications."
Submissions
Submissions on Behalf of the Appellant Sanjay in CRL.A. 48/2025
15. Mr. B. Badrinath, ld. Counsel appearing on behalf of Sanjay submits
that there were material contradictions in the depositions of the Prosecution
witnesses which put a serious doubt on the Prosecution's case. He submits
that the alleged incident, as per the Prosecution, was witnessed by the
Complainant (PW-1), Shahrukh (PW-5) and Sumit (PW-8). However, both
Shahrukh (PW-5) and Sumit (PW-8), who are independent witnesses, have
failed to ascribe any role to Sanjay and have, in fact, exonerated him.
Shahrukh (PW-5) has clearly deposed that the incident occurred during a
scuffle between Pradeep and the Complainant (PW-1), and that deceased
Neeraj sustained the injury in the course of that scuffle, without attributing
any role to Sanjay. Shahrukh (PW-5) has specifically denied the suggestion
that Sanjay had exhorted Pradeep to stab Neeraj. Similarly, Sumit (PW-8)
has also not supported the Prosecution's case qua Sanjay and has denied
that Sanjay either caught hold of the deceased Neeraj or exhorted the co-
accused to commit the offence. Ld. Counsel further submits that
Complainant (PW-1) himself admitted in cross-examination that he
personally did not see Pradeep stabbing Neeraj, thereby raising serious
doubt as to the manner of the occurrence and the specific role attributed to
Sanjay.
16. He further submits that no independent witness has been examined by
the Prosecution in support of their case despite the alleged incident having
taken place at a public place, namely, a main road in front of a bus stand.
The Prosecution witnesses themselves have categorically deposed regarding
the presence of numerous independent persons at the spot. In this regard,
reliance is placed on the judgment of the Supreme Court in Harijana
Thirupala v. Public Prosecutor, (2002) 6 SCC 470, wherein it has been
held that non-examination of independent witnesses seriously impairs the
credibility of the Prosecution's case, especially when the explanation offered
is feeble.
17. He further submits that the alleged weapon, being knife Ex.P2, was
recovered from a forested/open area accessible to all members of the public.
He places reliance upon Krishan v. State of Haryana, (2024) SCC OnLine
SC 70, wherein it has been held that recovery from an open space easily
accessible to many, and without joining independent witnesses, renders the
recovery suspicious and doubtful.
18. He further submits without prejudice to the argument that the
Appellant was not present at the spot, that even as per the Prosecution's
case, a scuffle took place between the Complainant (PW-1), the deceased
Neeraj and Pradeep, whereafter Pradeep brought a knife from a dhaba which
was only 10-15 steps away, and in the course of the scuffle stabbed the
deceased Neeraj. Inspector Dharam Dev (PW-31) has also deposed in cross-
examination about injuries on Pradeep's person which lends credence to the
fact that there was a scuffle between Pradeep, Complainant (PW-1) and
deceased Neeraj, thus demonstrating that the incident took place without
premeditation, in a sudden fight, and without the offenders having taken
undue advantage or acted in a cruel or unusual manner. Ld. Counsel further
submits that Pradeep's younger brother, Sanjay had reached the spot only
upon noticing the commotion involving his brother, and not prior to the
incident. He further submits that even as per the Prosecution's case, the
deceased Neeraj had intervened in the scuffle between Complainant (PW-1)
and Pradeep and, in that process suffered a stab injury, which further
supports the case that the occurrence was sudden and unplanned. In this
regard, reliance is placed upon Hem Raj v. State (Delhi Administration),
1990 Supp (1) SCC 291, wherein it was held that when the incident had
occurred on the spur of the moment and in the heat of passion upon a sudden
quarrel and a single stab was inflicted upon the chest of the deceased, he
could not be imputed with the intention to cause death of the deceased or
with the intention to cause that particular fatal injury. He submits that Sanjay
could not be imputed with the intention to cause death but only with the
knowledge that he was likely to cause an injury which was likely to cause
death. Reliance is further placed upon Jagtar Singh v. State of Punjab,
(1983) 2 SCC 342 and Ranjitham v. Basavaraj, (2012) 1 SCC 414, wherein
in similar circumstances the Supreme Court converted the conviction from
Section 302 to Section 304 Part II of the IPC. It is accordingly submitted
that although Complainant (PW-1) alleged that Sanjay had caught hold of
the deceased, the said allegation stands contradicted by Complainant's (PW-
1) own admission that he did not witness the actual act of stabbing, as well
as by the depositions of Shahrukh (PW-5) and Sumit (PW-8), both of whom
have categorically exonerated Sanjay, thereby rendering the said allegation
wholly unreliable. In the absence of any cogent evidence establishing
participation or a shared common intention, the Prosecution has failed to
prove the case against Sanjay beyond reasonable doubt, and no conviction
under Section 302 read with Section 34 IPC can be sustained against him.
19. Ld. Counsel further submits that Sanjay has already been incarcerated
for approximately 6 years and 5 months. He urges that, in keeping with the
reformative principle of sentencing, the Court ought to take into account that
Sanjay is the father of three daughters, one of whom is a five year minor,
entirely dependent upon him, and that his wife earns a meagre amount
working as a tailor and is unable to maintain the family. He submits that the
sentence already undergone is adequate punishment in the facts and
circumstances of the present case and that the Appellant is capable of
rehabilitation and reintegration into society.
Submissions on Behalf of the Appellant Pradeep in CRL.A. 65/2025
20. The grounds urged on behalf of Sanjay, namely, the non-examination
of independent witnesses despite the incident having taken place at a public
place, material contradictions in the depositions of Prosecution witnesses,
the suspicious recovery of the alleged weapon from an open and accessible
area without reliable forensic corroboration, and the failure of the
Prosecution to establish the genesis of the incident and to prove its case
beyond reasonable doubt, are common to the case of the present Appellant
Pradeep as well, and for the sake of brevity, are not reiterated herein.
21. Ld. Counsel appearing on behalf of Pradeep submits that the genesis
of the incident stems from a minor altercation over a trivial matter which
escalated into an unforeseen event, and there was no enmity or prior
animosity or planning suggesting a premeditated attack. Pradeep was
allegedly arrested on the following day based on a purported confession
during interrogation which is inadmissible under Section 25 of the Indian
Evidence Act, 1872 (hereinafter 'IEA'). He further submits that the
Prosecution has failed to present any cogent evidence directly linking
Pradeep to the commission of the offence and none of the witnesses could
conclusively establish the presence of common intention under Section 34
IPC, thereby undermining the credibility of the Prosecution's case.
22. He further submits that the ld. Trial Court failed to give due weight to
the material contradictions in the Prosecution's evidence. The Complainant
(PW1) stated that Sanjay was present and exhorted Pradeep, whereas
Shahrukh (PW5) stated that Sanjay was not present at the time of stabbing,
and the Complainant (PW1) himself admitted that he did not actually see
Pradeep stabbing Neeraj. Shahrukh (PW5) and Sumit (PW8) also provided
differing accounts. These material contradictions go to the root of the
Prosecution's case creating a strong element of reasonable doubt, in so far as
Sanjay is concerned, his role in the stabbing is not clear.
23. Ld. Counsel further submits that the ld. Trial Court failed to
appreciate the absence of crucial forensic evidence, as, although the police
have claimed to have recovered the weapon of offence, a kitchen knife, from
an open public area at the instance of Pradeep, however, no bloodstains or
fingerprints were found and the forensic report does not conclusively link
the knife to the commission of the offence, thereby casting serious doubt on
the alleged recovery. He further submits that Babban Singh, the dhaba
owner, failed to unequivocally identify the knife during trial, further
weakening the Prosecution's case.
24. Ld. Counsel further submits that the ld. Trial Court failed to
appreciate the contradictions between the FIR and the testimonies of
Prosecution witnesses during the examination-in-chief, particularly
concerning the sequence of events, as well as the medical evidence,
inasmuch as the post-mortem reflects a single stab wound whereas the
Prosecution witnesses claimed multiple injuries. He further submits that the
Complainant (PW1), being a habitual user of ganja, casts doubt on his
ability to accurately recall the sequence of events, thereby weakening the
credibility of the Prosecution's case.
Submissions on behalf of the Respondent- State
25. Per Contra, Mr. Bahri, ld. APP for the State submits that
Complainant (PW1) concluded his examination-in-chief on 10th January,
2014, fully supporting the Prosecution's case. His cross-examination was
conducted only on 8th August, 2014, after a gap of approximately seven
months, despite the opportunity available to the defence throughout. The
examination-in-chief of Complainant (PW1), which stood unrebutted for
seven months, is accordingly entitled to due weight and credence, and the
belated cross-examination is to be looked with caution.
26. He further submits that the testimonies of Shahrukh (PW-5) and
Sumit (PW-8), though declared hostile by the Prosecution, cannot be
discarded in their entirety. Reliance is placed upon Khujji @ Surendra
Tiwari v. State of Madhya Pradesh, (1991) 3 SCC 627, wherein it was held
that the evidence of a prosecution witness cannot be rejected in toto merely
because the Prosecution chose to treat him as hostile, and that such evidence
is not to be treated as washed off the record altogether but can be accepted to
the extent his version is found dependable on careful scrutiny. In the present
case, notwithstanding their hostility on the question of Sanjay's role,
Shahrukh (PW-5) correctly identified the knife (Ex.P-2) as the weapon used
in the incident, and Sumit (PW-8) admitted in his cross-examination that
Pradeep stabbed the deceased Neeraj in the abdomen and that Neeraj fell to
the ground on being stabbed. The relevant portions of the said testimonies
are extracted below:
Witness Cross- Examination
Shahrukh "...The knife used in the offence was a kitchen knife
and I can identify the same, if shown.
(PW-5) (at this, stage, MHC(M) has produced one sealed
paper envelope sealed with seal of DSP FSL which is
opened and one more envelope bearing particulars of
this case alongwith a kitchen knife broken in two
pieces is taken out and shown to the witness) The
knife shown to me in two pieces is the same knife
which was used in the incident in my presence and
the same is exhibited as Ex. P2."
Sanjay "...It is correct that Pradeep stabbed Neeraj in
abdomen. It is correct that on being stabbed, Neeraj
(PW-8) fell on the ground. It is correct that thereafter Neeraj
was lifted from the spot by Rajesh and thereafter I
alongwith Rajesh called mother of Neeraj to the
spot."
These admissions having gone uncontroverted, are liable to be relied upon
by this Court.
27. He submits that the medical evidence fully supports the Prosecution's
case. The post-mortem report records a single stab wound obliquely placed
on the left side of the chest, measuring 1.4 cm × 0.2 cm with a depth of
approximately 6.2 cm, situated 4.5 cm from the midline and 7 cm below the
nipple. He submits that the left side of the chest is a vital part of the human
body, and inflicting of a stab wound of such depth upon such vital part is
sufficient to establish the intention to cause bodily injury sufficient in the
ordinary course of nature to cause death. He submits that even if it be
accepted that the blow was intended for the Complainant (PW-1) but the
deceased Neeraj had intervened, which led to the stabbing. Accordingly, the
principle of transfer of malice under Section 301 IPC would be attracted and
the conviction under Section 302 IPC would be fully sustained.
28. He further submits that the presence of both Appellants at the spot and
their respective roles have been duly established by the testimonies of
Complainant (PW-1) and Sumit (PW-8). He submits that Babban Singh
(PW-4) has correctly identified the knife and the TIP proceedings have been
properly conducted and proved. He submits that common intention under
Section 34 IPC arose during the altercation, and the presence and
participation of Sanjay is sufficient to hold him liable.
29. On the question of sentence insofar as Appellant Sanjay is concerned,
he submits that the Court may take note of his prior criminal antecedents.
Appellant Sanjay has been previously convicted under Sections 382 and 392
read with Section 34 IPC in FIR No. 44/2010, and under Sections 279, 337,
338 and 471 IPC in FIR No. 594/2020. In view of these aggravating
circumstances, it is submitted that no leniency in sentence is warranted in his
case.
Analysis and Findings
30. The Court has heard the parties and considered the matter.
31. It is evident from the record that on 29th August 2012, at about 10:30
A.M., the deceased Neeraj was present at the bus stand, Prem Nagar, Lal
Kuan, along with Complainant (PW-1), Shahrukh (PW-5) and Sumit (PW-
8). It is not disputed that Pradeep arrived at the spot, that an altercation arose
over a demand for a cigarette, that Pradeep subsequently went to Babban
Dhaba and returned with a knife, and that deceased Neeraj sustained a stab
wound on the left side of his chest, resulting in his death. The post-mortem
report confirms the cause of death as cardiogenic shock due to an incised
stab wound to the chest. The factum of death, its cause, and the presence of
the Appellants stands established. The issue for determination is whether the
offence under Section 302/24 IPC is made out and whether the conviction
under Section 302 read with Section 34 IPC can be sustained.
32. The ld. Trial Court convicted both Appellants under Section 302 read
with Section 34 IPC, holding that the Appellants acted in concert with the
intention to cause death. The Court has examined whether the facts on
record, as disclosed by the Prosecution's own evidence, justify a conviction
for murder, or whether the offence falls within Exception 4 to Section 300
IPC, thus amounting to culpable homicide not amounting to murder.
Exception 4 to Section 300 IPC reads:
"300. Murder- Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention
of causing death, or--
xxx
Exception 4 -- Culpable homicide is not murder if
it is committed without premeditation in a sudden
fight in the heat of passion upon a sudden quarrel
and without the offender having taken undue
advantage or acted in a cruel or unusual manner.
Explanation -- It is immaterial in such cases which
party offers the provocation or commits the first
assault."
For Exception 4 to Section 300 to apply, four ingredients must be satisfied:
(i) the act must be committed without premeditation; (ii) it must occur in a
sudden fight in the heat of passion; (iii) it must arise upon a sudden quarrel;
and (iv) the offender must not have taken undue advantage or acted in a
cruel or unusual manner. The said Explanation clarifies that it does not
matter which party offered provocation or committed the first assault.
33. On the question of premeditation, the Prosecution's own case shows
there was no prior design or plan. The altercation arose spontaneously over a
trivial demand for a cigarette. There was no prior enmity between Pradeep
and deceased Neeraj, as Complainant (PW-1) admitted in cross-
examination. Pradeep did not arrive at the spot armed. Post the scuffle, he
went to the dhaba and returned with a kitchen knife belonging to Babban
Singh (PW-4), which was lying on the table. The knife was not brought from
home or kept ready. The entire sequence, from the demand for a cigarette to
the fatal blow, unfolded within minutes. There is no evidence to suggest that
either Appellant came to the spot with any intention to assault or kill Neeraj.
The lack of premeditation is thus established on the facts.
34. The requirement of a sudden fight in the heat of passion upon a
sudden quarrel is also met. Complainant (PW-1) stated that Pradeep came
and demanded a cigarette, was refused, pushed the Complaint (PW-1), he
was pushed back, and that heated words were exchanged. Thereafter,
Pradeep ran towards the dhaba, saying he would return and teach them a
lesson. Sumit (PW-8) confirmed this, stating that there was an exchange of
abuses and a scuffle between Complaint (PW-1) and Pradeep, and that
Complaint (PW-1) slapped Pradeep before Pradeep left for the dhaba and
returned with a knife. The Investigating Officer, Inspector Dharam Dev
(PW-31) , admitted that minor injuries of scuffle were found on Pradeep's
body at the time of his arrest. This supports the account of a sudden fight
involving mutual blows and there is no evidence of a calculated or deliberate
attack. The incident was a spontaneous escalation of a petty quarrel.
35. The third and fourth ingredients, i.e., absence of undue advantage and
absence of cruel or unusual conduct, are also satisfied. The post-mortem
evidence shows that Neeraj suffered a single stab wound on the left side of
the chest. Dr. Atul Kumar (PW-12) confirmed that there was only one stab
wound. A single blow in the course of a scuffle, without repeated or
sustained assault, does not by itself mean that the offender took undue
advantage or acted in a cruel or unusual manner. The deceased Neeraj was
not restrained or rendered helpless before being stabbed. On the contrary,
Shahrukh (PW-5) deposed that the deceased Neeraj had intervened in the
scuffle between Pradeep and Complainant (PW-1), and was injured during
that intervention. The Complainant (PW-1) said in cross-examination that he
did not see Pradeep stab Neeraj, and that Neeraj informed him of the
stabbing as he was being taken away. The stabbing happened during the
scuffle and was not a deliberate attack on a defenceless person.
36. It is also significant that Shahrukh (PW-5), an independent witness,
deposed that during the scuffle between Pradeep and the Complainant (PW-
1), Neeraj came forward to intervene and was injured in the process. This
version is consistent with the Appellants' case and the overall Prosecution
evidence. The deceased Neeraj was not the target of a premeditated attack,
he was injured in a sudden fight to which he was not a party at the outset,
having intervened in a scuffle involving others. This supports the application
of Exception 4 to Section 300 IPC.
37. The Court also considers the question of common intention attributed
to the Appellant Sanjay under Section 34 IPC. The Supreme Court in
Chellappa v. State, (2020) 5 SCC 160 held that Section 34 IPC is not a
substantive offence, and that before holding someone vicariously liable, the
Prosecution must prove the existence of a shared intention to commit the
crime. The Court cautioned that common intention cannot be presumed
merely from the presence at the scene or from a minor role, and that where
doubt exists, it must benefit the accused.
38. In the present case, the common intention attributed to Sanjay has
been inferred mainly from the allegation that he caught hold of the deceased
Neeraj and urged Pradeep to stab him. However, both independent
witnesses, Shahrukh (PW-5) and Sumit (PW-8), did not support this.
Shahrukh (PW-5) said Sanjay arrived after Neeraj was stabbed. Sumit (PW-
8), deposed that he did not see Sanjay catch hold of Neeraj and that Neeraj
was standing at some distance. In these circumstances, the inference of
shared intention to commit murder cannot be sustained against Sanjay.
39. Even if the presence and participation of Sanjay are accepted for the
sake of argument, Section 34 IPC is a rule of joint liability and does not
create a separate or aggravated offence. The liability under Section 34 IPC
follows the nature of the principal offence established against the main
accused. The Court finds that the offence made out against Pradeep is
culpable homicide not amounting to murder under Exception 4 to Section
300 IPC, accordingly, the liability of Sanjay, even if attached through
Section 34 IPC, cannot exceed that of the principal offender. The conviction
of Sanjay under Sections 302/34 IPC is therefore not sustainable.
40. Having found that Exception 4 to Section 300 IPC applies, it is
necessary to determine whether this case falls under Part I or Part II of
Section 304 IPC. Part I applies where the act is done with the intention of
causing death or such bodily injury as is likely to cause death. Part II applies
where the act is done with the knowledge that it is likely to cause death, but
without intention to cause death or such bodily injury as is likely to cause
death. In the present case, the knife was not Pradeep's property but was
taken from the dhaba in the heat of the moment. The fight was spontaneous,
only a single blow was inflicted and the Complainant (PW-1) did not see the
stabbing. In these circumstances, while there was knowledge that the act was
likely to cause death, there was no clear intention to cause death or a specific
injury likely to cause death. The present case thus falls under Section 304
Part II IPC.
41. In Narayan Yadav v. State of Chhattisgarh, 2025 SCC OnLine SC
1603, the Supreme Court recently observed that for Exception 4 to Section
300 IPC to apply, it is not enough to show a sudden quarrel and no
premeditation, it must also be shown that the offender did not take undue
advantage or act in a cruel or unusual manner. The relevant portion reads as
under:
"40. Exception 4 to Section 300 of the IPC applies
in the absence of any premeditation. This is very
clear from the words used in the provision itself. It
contemplates that the sudden fight must occur in
the heat of passion, or upon a sudden quarrel. The
Exception deals with a case of provocation not
covered by Exception 1, although it would have
been more appropriately placed after that
exception. It is founded upon the same principle, as
both involve the absence of premeditation.
However, while Exception 1 involves total
deprivation of self-control, Exception 4 refers to
that heat of passion which clouds a person's sober
reason and urges them to commit acts they would
not otherwise commit. There is provocation in
Exception 4, as there is in Exception 1, but the
injury caused is not the direct consequence of that
provocation. In fact, Exception 4 addresses cases
where, notwithstanding that a blow may have been
struck or provocation given at the outset of the
dispute, regardless of how the quarrel originated,
yet the subsequent conduct of both parties' places
them on an equal footing with respect to guilt."
41. A "sudden fight" implies mutual provocation
and the exchange of blows on both sides. In such
cases, the homicide committed is clearly not
attributable to unilateral provocation, nor can the
entire blame be placed on one side. If it
were, Exception 1 would be the more appropriate
provision. There is no prior deliberation or
intention to fight; the fight breaks out suddenly,
and both parties are more or less to blame. One
party may have initiated it, but had the other not
aggravated the situation by their own conduct, it
may not have escalated to such a serious level. In
such scenarios, there is mutual provocation and
aggravation, making it difficult to determine the
precise share of blame attributable to each
participant. The protection of Exception 4 may be
invoked if death is caused: (a) without
premeditation; (b) in a sudden fight; (c) without
the offender having taken undue advantage or
acted in a cruel or unusual manner; and (d) the
fight must have been with the deceased.
42. To bring a case within Exception 4, all the
ingredients mentioned therein must be satisfied. It
is important to note that the term "fight" occurring
in Exception 4 to Section 300 of the IPC is not
defined in the IPC. A fight necessarily involves two
parties - it takes two to make a fight. The heat of
passion requires that there must be no time for the
passions to cool, and in such case, the parties may
have worked themselves into a fury due to a prior
verbal altercation. A fight is a combat between two
and more persons, whether with or without
weapons. It is not possible to enunciate any
general rule as to what constitutes a "sudden
quarrel". This is a question of fact, and whether a
quarrel is sudden or not must necessarily depend
upon the proved facts of each case. For the
application of Exception 4, it is not enough to
show that there was a sudden quarrel and no
premeditation. It must also be shown that the
offender did not take undue advantage or act in a
cruel or unusual manner. The expression "undue
advantage" as used in the provision means
"unfair advantage".
43. From the above conspectus, it emerges that
whenever a court is confronted with the question
whether the offence is "murder" or "culpable
homicide not amounting to murder", it will be
convenient to approach the problem in three
stages. The question to be considered at the first
stage is, whether the accused committed an act
which caused the death of another person. Proof of
a causal connection between the act of the accused
and the resulting death leads to the second stage
for considering whether that act of the accused
amounts to "culpable homicide" as defined in
Section 299 of the IPC. If the answer to this
question is, prima facie, found in the affirmative,
the next stage involves considering the application
of Section 300 of the IPC. At this stage, the court
must determine whether the facts proved by the
prosecution bring the case within the ambit of any
of the four clauses of the definition of "murder"
contained in Section 300. If the answer to this is in
the negative, the offence would be "culpable
homicide not amounting to murder", punishable
under either the first or the second part of Section
304, depending respectively on whether the second
or the third clause of Section 299 is applicable.
However, if the answer is in the positive, but the
case falls within any of the exceptions enumerated
in Section 300, the offence would still be "culpable
homicide not amounting to murder", punishable
under the Part I of Section 304 of the IPC."
(emphasis supplied)
42. In the present case, despite the Appellant Pradeep having a knife in
his hand and the deceased was unarmed, he did not take any undue
advantage of the same. Only a single wound was caused on the spur of the
moment. Thus, Exception 4 Section 300 IPC to would be applicable.
43. As to sentence, the Appellants have been in custody for more than
seven years. Both have therefore undergone a substantial period of
incarceration. Sanjay is the father of three daughters, one of whom is a five-
year minor, entirely dependent upon him, his wife earns a meagre income
and cannot maintain the family. Considering the nature of the offence as
found by this Court, the period of sentence already undergone, and the
absence of aggravating factors, it is held that a sentence of the period
already undergone would be adequate and appropriate.
Conclusion
44. Having regard to the material on record and for the reasons stated
above, this Court holds that the conviction against the Appellants cannot be
sustained in its present form. The offence committed by the Appellants falls
within the category of culpable homicide not amounting to murder.
45. Accordingly, the judgment of conviction dated 18th May, 2024 and the
order on sentence dated 16th October, 2024, passed by the ld. Trial Court are
hereby modified.
46. The conviction of both Appellants under Section 302 read with
Section 34 IPC is set aside and the Appellants are convicted for culpable
homicide not amounting to murder punishable under Section 304 Part II of
the IPC read with Section 34 IPC.
47. The sentence of both Appellants is modified to the period of
imprisonment already undergone.
48. The fine imposed by the ld. Trial Court shall remain. The directions
regarding payment of compensation to the family of the deceased Neeraj
shall also remain in force.
49. Both Appellants are directed to be released forthwith, if not required
in any other case.
50. The Appeals are accordingly allowed. Pending applications, if any,
are disposed of.
51. Copy of this order be sent to the Jail Superintendent, for information
and compliance.
52. Let the copy of this order be communicated to the Secretary, DLSA
(South-East) for necessary information and compliance.
MADHU JAIN
JUDGE
PRATHIBA M. SINGH
JUDGE
APRIL 8, 2026/Av
