Delhi High Court
Robin Massey @ Monu vs State Nct Of Delhi on 16 July, 2025
Author: Subramonium Prasad
Bench: Subramonium Prasad
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th JULY, 2025
IN THE MATTER OF:
+ CRL.A. 974/2024 & CRL.M.(BAIL) 1741/2024
ROBIN MASSEY @ MONU .....Appellant
Through: Mr. B. Badrinath, Adv. (DHCLSC)
versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Aashneet Singh, APP for State.
SI Sanjay Kumar, PS Mehrauli
Mr. Harsh Prabhakar, Adv (DLSA),
Mr. Dhruv Chaudhry, Mr. Shubham
Sourav, Advs.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
JUDGMENT
SUBRAMONIUM PRASAD, J
1. The present appeal is directed against the judgment of conviction
dated 07.05.2024 and the order on sentence dated 25.07.2024, passed by the
learned Additional Sessions Judge in Sessions Case No. 7141/2016, arising
out of FIR No. 1883/2014, registered at Police Station Mehrauli, under
Section 302 of the Indian Penal Code, 1860. By the impugned judgment, the
Appellant, Robin Massey @ Monu, was convicted for committing the
murder of one Dharmender @ Dharmu during the intervening night of 6th
and 7th October, 2014. He has been sentenced to rigorous imprisonment for
life along with a fine of ₹50,000, and in default of payment, to undergo six
months’ simple imprisonment.
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2. The Appellant, being aggrieved by the conviction and sentence, has
preferred the present appeal.
3. The facts leading to the filing of the present appeal as stated in the
impugned judgment are as follows:
a) The prosecution was initiated when a PCR van, Eagle-30, on
routine patrolling duty, received an oral intimation from
one Arvind Kumar Tripathi (PW9) around 2:00 a.m. that a person
was being assaulted with bricks and stones near Chhatarpur
Mandir Road. Acting on this information, the police personnel
comprising HC Mange Ram (PW1), Ct. Jaideep (PW2), and Ct.
Praveen (PW3) proceeded to the indicated location, where they
allegedly found an injured male person lying unconscious on the
ground and another individual, later identified as Robin Massey @
Monu(the Appellant), standing nearby.
b) It is stated that the PCR officials inquired into the circumstances,
during which, according to the prosecution, the Appellant admitted
to having assaulted the injured person. It is further stated that the
injured, later identified as Dharmender @ Dharmu, was found
bleeding profusely from the head and was immediately taken to
Fortis Hospital, Vasant Kunj, in the PCR vehicle along with the
Appellant. Upon medical examination, the injured was declared
―brought dead‖ by the attending doctors. The death was noted in
the medico-legal register, and the same was intimated to the local
police station for further proceedings. FIR No.1883/2014 was
registered at Police Station Mehrauli for offences under Section
302 IPC.
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c) It is stated that the investigation was taken over by Inspector Sunil
Kumar (PW23), who recorded the statement of the patrolling
officer HC Mange Ram and accordingly prepared a rukka which
was handed over to HC Tejpal Singh (PW5) for the registration of
FIR. The FIR No. 1883/2014 under Section 302 IPC was formally
registered at 4:10 a.m. on 07.10.2014 by the Duty Officer, SI
Shriram (PW7), and was duly transmitted to the concerned
Magistrate and senior officers.
d) It is stated that during the course of investigation, the police visited
the scene of occurrence near Rajdhani Medical Store and MCD
Park, Chhatarpur Road. The site was inspected in the presence of
forensic and crime teams. Multiple articles were recovered and
seized from the spot, including a half-brick, a large flat stone
(silli), blood-stained earth, control earth, strands of hair, and a
blood-stained slipper. These articles were taken into possession
under panchnamas and sealed for subsequent forensic analysis. A
site plan was also prepared, and photographs were taken. The
Appellant was formally arrested at the hospital based on the
alleged identification by witness Arvind Kumar Tripathi (PW9),
and a disclosure statement was recorded.
e) It is further stated that in the days following the incident, the
investigating team recorded the statements of several individuals
claiming to be eyewitnesses to the occurrence. Among them
were Akash (PW4), who resided nearby and stated that he
witnessed the assault while returning from relieving himself,
and Rahul (PW8), a tea vendor who alleged he was passing by due
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to abdominal pain and saw the Appellant hitting the deceased.
Both witnesses initially supported the prosecution version.
However, it is noted that during trial, PW8 resiled from his earlier
statement and alleged coercion by the Investigating Officer. PW4
maintained his account during chief and cross-examination.
f) It is stated that another witness, Arvind (PW9), who claimed to be
a part-time watchman at a local workshop, stated that he had seen
the Appellant and the deceased quarrelling and that he had alerted
the PCR van when he saw the assault take place. His testimony
corroborated that of PW4 to a limited extent.
g) It is stated that during the investigation, the police came into
possession of a CCTV hard disk from one Laxman Singh (PW12),
the owner of a nearby property. The footage was claimed to
capture the incident from a distance. The hard disk was seized and
sent to the FSL, and subsequently, a CD containing the footage
was produced as Ex.PW17/P1. During trial, the footage was played
in court. While some witnesses affirmed that the recording
matched the incident they had witnessed, the Court recorded that
the visual clarity was insufficient for facial identification, given the
night-time setting and distance of the camera.
h) It is stated that a post-mortem examination was conducted on the
body of the deceased at AIIMS, New Delhi, and the report
prepared by Dr. Hari Prasad (PW26) concluded that the cause of
death was cranio-cerebral damage consequent to blunt force
trauma, sufficient to cause death in the ordinary course of nature.
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The injuries were opined to be ante-mortem and homicidal in
nature.
i) It is stated that following completion of investigation, a charge-
sheet was filed under Section 302 IPC. The Appellant was
formally charged with having committed murder by intentionally
inflicting injuries with bricks and stones with the knowledge that
such injuries were likely to cause death. The Appellant pleaded not
guilty and claimed trial.
j) It is stated that at trial, the prosecution examined 27 witnesses,
including members of the PCR, investigating officers, medical and
forensic experts, and alleged eyewitnesses. The defence led no
evidence.
k) Upon evaluating the testimony and material on record, the Trial
Court convicted the Appellant and sentenced him to life
imprisonment along with a fine leading to the present Appeal.
4. The Trial Court convicted the Appellant, Robin Massey @ Monu,
under Section 302 IPC, holding that the prosecution had succeeded in
establishing the commission of murder of Dharmender @ Dharmu beyond
reasonable doubt. The trial court found that the case rested primarily on the
testimonies of three purported eyewitnesses-PW4 Akash, PW8 Rahul, and
PW9 Arvind Kumar Tripathi-as well as the recovery of physical evidence
from the scene of occurrence and post-mortem confirmation of homicidal
injuries.
5. The trial court noted that although PW8 Rahul later retracted his
testimony, he had, during his examination-in-chief, identified the accused as
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the assailant and had narrated the sequence of the attack. Similarly, PW4
Akash offered a consistent narrative of the incident, stating that he saw the
accused strike the deceased multiple times on the head with a brick and
stone. PW9 Arvind corroborated these accounts to the extent that he saw a
quarrel between the accused and the deceased, and also informed the PCR
van of the ongoing incident.
6. The Trial Court took into account the medical evidence-specifically
the post-mortem report (PW26, Dr. Hari Prasad)-which confirmed that the
injuries suffered by the deceased were consistent with the use of heavy blunt
objects and were sufficient in the ordinary course of nature to cause death.
7. The trial Court further relied on the testimonies of the PCR officials
(PW1 HC Mange Ram, PW2 Ct. Jaideep, PW3 Ct. Praveen), who stated that
the Appellant was found at the spot, confessed on the scene, and was taken
to the hospital along with the deceased. Although the CCTV footage
(Ex.PW17/P1) was played in court, the Trial Court itself noted that the
footage was not visually clear enough for conclusive identification, but
accepted it as corroborative of the occurrence of a violent altercation at the
relevant time and place.
8. The Trial Court also noted that the defence had not led any evidence,
and that the cross-examination of prosecution witnesses failed to
substantially dent the prosecution case. The retraction of PW8’s statement
was not considered fatal, as the trial court found PW4 and PW9 reliable and
consistent. Accordingly, the trial court convicted the Appellant under
Section 302 IPC and sentenced him to life imprisonment with fine.
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9. The Trial Court adopted a cumulative approach to appreciating the
evidence, noting that even if some links in the chain were weakened-such as
PW8 turning hostile or the limited utility of the CCTV footage-the overall
evidentiary matrix still formed an unbroken chain pointing to the guilt of the
Appellant.
10. The Trial Court further emphasized the role of ocular evidence,
particularly that of PW4 Akash, as the most reliable testimony. PW4
described seeing the accused and deceased quarrelling, followed by the
accused hitting the deceased with a brick and a stone slab multiple times on
the head. The Trial Court found this testimony to be natural, cogent, and
uninfluenced.
11. As for PW8 Rahul, though he later denied being present, the trial
court took into account his initial detailed testimony, wherein he had
corroborated PW4’s version and identified the accused in court. The Trial
Court, relying on the principle laid down in Ram Bhukan v. State, AIR 1994
SC 561, held that even a partly hostile witness can be relied upon to the
extent of the truth in their statement.
12. PW9 Arvind was treated as a corroborative eyewitness whose
testimony about witnessing a quarrel, informing the police, and identifying
the accused at the spot was found to be consistent and trustworthy. His
neutrality, being a bystander and watchman, was emphasized.
13. The PCR team (PW1 to PW3) was also relied upon to establish the
immediate presence of the accused at the scene and the chain of events
leading to medical examination. These witnesses consistently stated that the
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Appellant was standing near the injured person and volunteered his role
when questioned.
14. The medical evidence, particularly the post-mortem report of Dr. Hari
Prasad (PW26), noted multiple lacerated and contused wounds over the head
and face, leading to death due to cranio-cerebral damage. This was
considered entirely consistent with the weapons recovered at the scene.
15. The CCTV footage (Ex. PW17/P1) was noted as supportive, but not
conclusive. The Trial Court recorded that while the footage captured a
scuffle, the faces of the individuals were not clearly discernible due to night-
time recording and camera angle.
16. The forensic evidence included the seizure of blood-stained stones, a
brick slab, soil, slippers, and hair strands (Ex. PW5 series). The articles were
sent to FSL and the DNA report confirmed the presence of human blood
matching the deceased’s profile on some of these items. These findings were
accepted as confirmatory rather than standalone proof.
17. In evaluating the evidence led by the prosecution, this Court is
mindful that credible and consistent eyewitness testimony can form the basis
for conviction even in the absence of corroborative material, while
circumstantial evidence must meet the test of forming a complete and
unbroken chain that leads only to the guilt of the accused. In the present
case, the prosecution has relied on the direct testimony of three witnesses–
PW4 Akash, PW8 Rahul, and PW9 Arvind Kumar Tripathi–as well as
physical and forensic evidence, supported by medical opinion.
18. The occurrence in question took place during the intervening night
of 6th and 7th October, 2014, at around 1:30 to 2:00 a.m., near the T-point
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adjoining MCD Park, Chhatarpur Road, New Delhi. PW4 Akash, who was
residing at an under-construction house near the spot, deposed that he had
stepped out to relieve himself when he saw a group of 3-4 persons near a
TSR, engaged in a verbal exchange. He stated that the Appellant, Robin
Massey @ Monu, began arguing with one of the persons and struck him
with a brick. After the victim fell to the ground, the Appellant continued to
hit him with a stone slab on the head. Akash’s statement was consistent with
his presence near the scene, and his version remained substantially unshaken
during cross-examination.
19. PW9 Arvind, who was employed to watch over a nearby workshop
and was present at the tea stall of his maternal uncle at the relevant time,
also deposed that he witnessed the accused striking the deceased. He
specifically stated that he saw four boys get down from a TSR, and soon
thereafter, one among them began hitting another with a smaller stone, then
a larger stone, and finally with a flat slab (―silli‖). PW9 testified that he
flagged down a PCR van and alerted the officials, who then reached the
spot. His testimony was consistent in material particulars with that of PW4
and his role in summoning the police was independently corroborated by the
PCR officials.
20. PW8 Rahul, who ran a tea stall in the locality and claimed to be
heading to purchase medicine due to stomach pain, initially stated that he
witnessed the Appellant hitting the deceased with a stone. However, when
recalled for further cross-examination, Rahul retracted his testimony, denied
being present at the scene, and claimed he was coerced by the Investigating
Officer into making his earlier statement. He further denied operating a tea
stall or living at the address attributed to him. Despite this retraction, the
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Trial Court accepted his examination-in-chief to the extent it aligned with
other evidence, invoking the settled position that the testimony of a hostile
witness is not to be discarded outright but may be relied upon where found
credible.
21. In addition to these witnesses, the prosecution examined the PCR
personnel–PW1 HC Mange Ram, PW2 Ct. Jaideep, and PW3 Ct.
Praveen–who stated that while patrolling in PCR Van Eagle-30, they were
flagged down by Arvind (PW9) and informed that a man was being
assaulted. On reaching the scene, they found the injured lying on the ground
and the Appellant standing nearby. Upon inquiry, the Appellant allegedly
admitted to having assaulted the injured with bricks. The injured was then
taken to Fortis Hospital, where he was declared brought dead.
22. The post-mortem examination was conducted by PW26 Dr. Hari
Prasad who opined that the cause of death was cranio-cerebral damage
caused by blunt force trauma, consistent with repeated blows from heavy
objects like bricks or stones. The injuries were stated to be ante-mortem.
23. The forensic evidence included the recovery of blood-stained bricks,
stones, a slipper, hair strands, and soil samples, all seized vide various
seizure memos (Ex. PW5/D to Ex. PW5/J). These items were sent to the
FSL, and reports (Ex. PW16/A and others) confirmed the presence of human
blood, though the source matching was not categorically established on all
items. The CCTV footage, seized from a DVR at PW12 Laxman
Singh‟s house, was presented via Ex. PW17/P1 and played in court.
However, the Trial Court observed that the faces of the individuals were not
clearly visible due to the camera angle and lighting, limiting the footage’s
evidentiary value to corroboration of the occurrence but not of identity.
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24. Upon a cumulative appreciation, the court found that the eyewitness
accounts of PW4 and PW9, reinforced by corroborative medical and
forensic evidence, provide a consistent narrative implicating the Appellant.
Although PW8 retracted from his earlier version, his prior testimony is
partly admissible under law and is corroborative in nature. The physical
presence of the Appellant at the scene, his alleged admission before the
PCR, and the sequence of events support the prosecution’s case. While the
circumstantial evidence alone may not have been sufficient to establish guilt,
it significantly strengthens the otherwise reliable direct evidence available in
the form of eyewitness accounts.
25. Learned Counsel for the Appellant contends that the Trial Court
committed a grave error in convicting the Appellant solely on the basis of
uncorroborated and inconsistent testimony, while ignoring key procedural
safeguards and the benefit of doubt arising from the overall evidentiary
record.
26. It is submitted that the Trial Court failed to appreciate that the FIR is
not based on any written complaint or initial statement by an eyewitness, but
rather initiated upon DD entry made by PCR officials on being informed by
PW9 Arvind. There is no prior complaint or statement by an injured or eye-
witness at the time of the lodging of FIR. This, it is argued, casts doubt on
the spontaneity and reliability of the prosecution’s case.
27. He further contends that the case rests predominantly on the testimony
of PW4 and PW9. However, these witnesses, according to the defence, were
either not present at the scene or had reasons to falsely implicate the
Appellant. PW4 was a known person to the Appellant and resided nearby;
his testimony is argued to be motivated and lacking in independent
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corroboration. PW9, on the other hand, did not mention the name of the
accused when initially informing the PCR van, nor did he offer any
explanation for the delay in identifying the accused.
28. It is also contended that PW8 Rahul, who was presented as an
independent eyewitness, completely retracted from his original testimony
upon being recalled and cross-examined. He stated that he was not present at
the spot, had not seen the incident, and was allegedly coerced by the police
into making the earlier statement. Despite this, the Trial Court relied on
selective portions of his testimony, in violation of established law which
mandates caution when dealing with hostile witnesses.
29. It is argued that the so-called extra-judicial confession before the PCR
officials–where the accused allegedly stated that he had hit the victim–is
neither admissible in law nor corroborated by any independent witness. The
confession was not recorded under Section 164 CrPC, nor were any
recovery or disclosure proceedings duly followed thereafter.
30. It is furthermore stated that the CCTV footage produced by the
prosecution has also been challenged as vague and lacking probative value.
It neither clearly captures the face of the Appellant nor does it depict the
sequence of assault with sufficient clarity. No scientific analysis was
conducted to verify identity, and the DVR was seized from a private
residence without ensuring an evidentiary chain of custody.
31. It is argued that all the recoveries shown by the prosecution–
including the bricks, stones, blood-stained earth, and slippers–were
allegedly made from an open public place. No independent public witness
was joined at the time of seizure. The prosecution has not adequately
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explained why neutral witnesses were not available or examined, especially
when the incident occurred in a public area.
32. On medical grounds, it is submitted that while the post-mortem
confirms death due to blunt force trauma, it does not conclusively link the
injuries with the exact manner or weapon attributed by the prosecution. The
absence of fingerprints or blood on the hands or clothes of the Appellant
also militates against his alleged involvement.
33. Lastly, he emphasizes on the prolonged incarceration since October
2014 and the absence of any criminal antecedents. The conviction, it is
argued, results in a miscarriage of justice given the lack of a complete and
unimpeachable chain of evidence. It is important to note that the Trial Court
failed to apply the principle that in cases resting on circumstantial and
partially hostile evidence, the benefit of doubt must go to the accused.
34. Per contra, the learned APP for the State has supported the judgment
of conviction and sentence, contending that the impugned judgment is well-
reasoned, based on credible evidence, and does not suffer from any illegality
or perversity warranting interference by this Court in appellate jurisdiction.
35. It is submitted that the conviction of the Appellant is primarily based
on the direct ocular testimony of PW4 Akash and PW9 Arvind Kumar
Tripathi, both of whom witnessed the Appellant striking the deceased with a
brick and a heavy stone in the early morning hours of 07.10.2014. Their
testimonies, it is contended, are natural, consistent, and fully corroborated
by the medical and forensic evidence on record.
36. The State further contends that the eyewitness account of PW4 was
credible and remained unshaken in cross-examination. PW9, a night
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watchman, is an independent witness with no animus against the accused,
and his deposition is consistent with the prosecution version. It is
emphasized that the defence failed to elicit any material contradiction in
their testimonies.
37. As regards PW8 Rahul, it is submitted that the witness turned hostile
during further cross-examination but had already deposed during
examination-in-chief that he had seen the Appellant attacking the deceased.
Relying on the decision in State of U.P. v. Ramesh Prasad Misra, it is argued
that even the testimony of a hostile witness can be relied upon to the extent
it supports the prosecution, particularly where it is corroborated by other
evidence.
38. The APP asserts that the forensic evidence, including the blood-
stained bricks and stones recovered from the crime scene, and the medical
report showing multiple blunt force injuries, further corroborate the
eyewitness account. The post-mortem report confirms that the injuries were
sufficient to cause death in the ordinary course of nature.
39. On the issue of CCTV footage, he contends that the footage supports
the prosecution timeline and shows movement consistent with the version of
events. While the footage may not identify the accused with clarity, it
corroborates the occurrence of a violent incident at the stated time and place.
40. The argument regarding absence of motive is downplayed by the
prosecution, asserting that motive, though relevant, is not indispensable
when there is clear and direct eyewitness evidence of the commission of the
crime. It is pointed out that the accused was present at the spot, did not raise
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any alarm or call for help, and instead attempted to flee, indicating a guilty
mind.
41. The APP also stresses on the fact that the Appellant’s confession to
the PCR officials, though not a judicial confession, forms part of the
sequence of events showing his involvement and was immediately acted
upon by law enforcement. The statement is admissible under Section 8 of
the Indian Evidence Act as conduct of the accused post-offence.
42. Lastly, it is contended that the defence has not brought on record any
plausible explanation for the presence of the accused at the scene, nor any
alternative theory to rebut the prosecution’s case. The cumulative chain of
evidence–eyewitnesses, forensic proof, medical opinion, and the absence of
plausible defence–forms a complete narrative implicating the Appellant
beyond reasonable doubt. The appeal, it is therefore submitted, is without
merit and liable to be dismissed.
43. Heard the learned Counsels for the parties and perused the material on
record.
44. In adjudicating the present appeal, it is imperative to draw a clear
distinction between culpable homicide under Section 299 IPC
and murder under Section 300 IPC, as the entire question of culpability
hinges on whether the act alleged falls within the four corners of the latter.
Section 299 defines culpable homicide as the act of causing death with the
intention of causing death, or with the intention of causing such bodily
injury as is likely to cause death, or with the knowledge that the act is likely
to cause death. Section 300, in contrast, carves out specific categories of
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culpable homicide that amount to murder by setting a higher threshold of
intention and knowledge.
45. The Apex Court has clarified in State of Andhra Pradesh v.
Rayavarapu Punnayya, (1976) 4 SCC 382, that “culpable homicide is the
genus and murder its species”, and that all murders are culpable homicides
but not all culpable homicides are murders. The distinction depends upon
the degree of probability of death, and the intention or knowledge with
which the act is committed. The relevant portion of the said judgment reads
as under:-
“12. In the scheme of the Penal Code, “culpable
homicide” is 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
this generic offence, the Code practically recognises
three degrees of culpable homicide. The first is, what
may be called, “culpable homicide of the first degree”.
This is the greatest 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 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.”
46. The Apex Court in State of A.P. v. Rayavarapu Punnayya, (1976) 4
SCC 382, has held that whenever the a court is confronted with the question
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whether the offence is ―murder‖ or ―culpable homicide not amounting to
murder‖, on the facts of a case, it will be convenient for it to approach the
problem in three stages. The question to be considered at the first stage
would be, whether the accused has done an act by doing which he has
caused the death of another. Proof of such causal connection between the act
of the accused and the death, leads to the second stage for considering
whether that act of the accused amounts to ―culpable homicide‖ as defined
in Section 299. If the answer to this question is prima facie found in the
affirmative, the stage for considering the operation of Section 300 of the
Penal Code, is reached. This is the stage at which the court should 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 question is in the negative the offence would be
―culpable homicide not amounting to murder‖, punishable under the first or
the second part of Section 304, depending, respectively, on whether the
second or the third clause of Section 299 is applicable. If this question is
found in the positive, but the case comes within any of the exceptions
enumerated in Section 300, the offence would still be ―culpable homicide
not amounting to murder‖, punishable under the first part of Section 304, of
the Penal Code.
47. Similarly, in Abdul Waheed Khan v. State of A.P., (2002) 7 SCC 175,
the Apex Court has observed that in the scheme of IPC culpable homicide is
the genus and ―murder‖, its specie. The Apex Court has held that all
―murder‖ is ―culpable homicide‖ but not vice versa. The Apex Court has
further held that ―culpable homicide‖ without ―special characteristics of
murder is culpable homicide not amounting to murder‖ and for the purpose
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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‖ and 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 the first part of Section 304. Then, there is
―culpable homicide of the third degree‖ which 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. In the said judgment, the
Apex Court has observed as under:
“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
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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 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.”
48. The Apex Court in Pulicherla Nagaraju v. State of A.P., (2006) 11
SCC 444, has observed as under:
“29. Therefore, the court should proceed to decide the
pivotal question of intention, with care and caution, as
that will decide whether the case falls under Section
302 or 304 Part I or 304 Part II. Many petty or
insignificant matters — plucking of a fruit, straying of
cattle, quarrel of children, utterance of a rude word or
even an objectionable glance, may lead to altercations
and group clashes culminating in deaths. Usual
motives like revenge, greed, jealousy or suspicion may
be totally absent in such cases. There may be no
intention. There may be no premeditation. In fact, there
may not even be criminality. At the other end of the
spectrum, there may be cases of murder where the
accused attempts to avoid the penalty for murder by
attempting to put forth a case that there was no
intention to cause death. It is for the courts to ensure
that the cases of murder punishable under Section 302,
are not converted into offences punishable under
Section 304 Part I/II, or cases of culpable homicide not
amounting to murder, are treated as murder
punishable under Section 302. The intention to cause
death can be gathered generally from a combination of
a few or several of the following, among other,
circumstances: (i) nature of the weapon used; (ii)
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whether the weapon was carried by the accused or was
picked up from the spot; (iii) whether the blow is aimed
at a vital part of the body; (iv) the amount of force
employed in causing injury; (v) whether the act was in
the course of sudden quarrel or sudden fight or free for
all fight; (vi) whether the incident occurs by chance or
whether there was any premeditation; (vii) whether
there was any prior enmity or whether the deceased
was a stranger; (viii) whether there was any grave and
sudden provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken
undue advantage or has acted in a cruel and unusual
manner; (xi) whether the accused dealt a single blow
or several blows. The above list of circumstances is, of
course, not exhaustive and there may be several other
special circumstances with reference to individual
cases which may throw light on the question of
intention. Be that as it may.”
49. Bringing out the distinction between clause (b) of Section 299 IPC
and clause (3) of Section 300 IPC, the Apex Court in Raj Pal v. State of
Haryana, (2006) 9 SCC 678, has held as under:
“16. Clause (b) of Section 299 corresponds with
clauses (2) [Ed. : Secondly] and (3) [Ed. : Thirdly] of
Section 300. The distinguishing feature of the mens rea
requisite under clause (2) [ Arising out of SLP (Crl.)
No. 5228 of 2005. From the Final Judgment and Order
dated 15-7-2005 of the High Court of Punjab and
Haryana at Chandigarh in Crl. A. No. 177-SB/92] is
the knowledge possessed by the offender regarding the
particular victim being in such a peculiar condition or
state of health that the 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 clauseSignature Not Verified
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(2) [ Arising out of SLP (Crl.) No. 5228 of 2005. From
the Final Judgment and Order dated 15-7-2005 of the
High Court of Punjab and Haryana at Chandigarh in
Crl. A. No. 177-SB/92] . 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) [ Arising out of SLP (Crl.) No. 5228 of 2005. From
the Final Judgment and Order dated 15-7-2005 of the
High Court of Punjab and Haryana at Chandigarh in
Crl. A. No. 177-SB/92] is borne out by Illustration (b)
appended to Section 300.
17. Clause (b) of Section 299 does not postulate any
such knowledge on the part of the offender. Instances
of cases falling under clause (2) [ Arising out of SLP
(Crl.) No. 5228 of 2005. From the Final Judgment and
Order dated 15-7-2005 of the High Court of Punjab
and Haryana at Chandigarh in Crl. A. No. 177-SB/92]
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) [Ed. : Secondly] 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
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may result in miscarriage of justice. The difference
between clause (b) of Section 299 and clause (3) [Ed. :
Secondly] of Section 300 is one of the 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 probability as
distinguished from a mere possibility. The 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.
18. For cases to fall within clause (3) [Ed. : Secondly]
, 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. Kalarimadathil Unni v.
State of Kerala [1966 Supp SCR 230 : AIR 1966 SC
1874 : 1966 Cri LJ 1509] is an apt illustration of this
point.
*****
20. The ingredients of clause “thirdly” of Section 300
IPC were brought out by the illustrious Judge in his
terse language (in AIR para 12) as follows : (SCR pp.
1500-01)
“[12.] To put it shortly, the prosecution must prove the
following facts before it can bring a case under Section
300 „3rdly‟;
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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 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.”
21. The learned Judge explained the third ingredient in
the following words (at AIR p. 468) : (SCR p. 1503)
“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
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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.”
22. These observations of Vivian Bose, J. have become
locus classicus. The test laid down by Virsa Singh case
[1958 SCR 1495 : 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 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.”
50. In Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635, the Apex
Court, while describing the factors which are to be taken into consideration
while awarding the sentence to an accused, has observed as under:
“23. These are some factors which are required to be
taken into consideration before awarding appropriate
sentence to the accused. These factors are only
illustrative in character and not exhaustive. Each case
has to be seen from its special perspective. The
relevant factors are as under:
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(a) motive or previous enmity;
(b) whether the incident had taken place on the spur of
the moment;
(c) the intention/knowledge of the accused while
inflicting the blow or injury;
(d) whether the death ensued instantaneously or the
victim died after several days;
(e) the gravity, dimension and nature of injury;
(f) the age and general health condition of the accused;
(g) whether the injury was caused without
premeditation in a sudden fight;
(h) the nature and size of weapon used for inflicting the
injury and the force with which the blow was inflicted;
(i) the criminal background and adverse history of the
accused;
(j) whether the injury inflicted was not sufficient in the
ordinary course of nature to cause death but the death
was because of shock;
(k) number of other criminal cases pending against the
accused;
(l) incident occurred within the family members or
close relations;
(m) the conduct and behaviour of the accused after the
incident. Whether the accused had taken the
injured/the deceased to the hospital immediately to
ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into
consideration while granting an appropriate sentence
to the accused.”
51. Applying the said parameters to the facts of the present case wherein
PW-8 & PW-9, who are two eye-witnesses, have stated that on the fateful
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night four boys, including the deceased and the Appellant herein, got down
from the TSR. It is stated that all the four persons were under the influence
of liquor. The eye-witnesses have stated that one of the four boys started
beating the other boy. It is stated that the deceased was first hit with a
smaller stone and then he was hit by a bigger stone which was lying there.
The Trial Court has itself observed that the CCTV footage is quite blurred.
Exhibit-19, which are the photographs, shows presence of two stones. The
dimension of stones are not available. In view of the fact that there was a
quarrel and all the four persons, including the deceased and the Appellant
herein, came together from the TSR, it cannot be said that there was any
intention to commit murder. The motive of murder has not been brought out
very clearly. The incident seems to have happened in the spur of the moment
in a quarrel. The death has been caused by a stone which was lying nearby.
52. There is no criminal background of the Appellant. In view of the law
laid down by the Apex Court and the material on record, this Court is of the
opinion that the material against the Appellant herein is not sufficient to
bring him under Section 300 IPC punishable under Section 302 IPC.
Accordingly, the conviction of the Appellant under Section 302 IPC is set
aside. Instead, the Appellant is convicted under Section 304 Part-I IPC,
which applies to acts done with the intention of causing such bodily injury
as is likely to cause death.
53. As regards the sentence, the Appellant has been in custody
since 07.10.2014, and has thus undergone more than eight years of
incarceration.
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54. Accordingly, the Appellant is sentenced to rigorous imprisonment for
a period of 10 years and is directed to be released after completion of 10
years, if not required to be detained in any other case.
55. The appeal is partly allowed in the above terms. The impugned
judgment of conviction and order on sentence
dated 07.05.2024 and 27.07.2024 respectively passed by the learned ASJ are
modified to the extent indicated hereinabove.
56. Let a copy of this judgment be transmitted to the concerned Jail
Superintendent for compliance.
SUBRAMONIUM PRASAD, J
HARISH VAIDYANATHAN SHANKAR, J
JULY 16, 2025
JP/Rahul
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