Shankar Lal vs State Of Nct Of Delhi
- Court
- Delhi High Court
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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RESERVED ON: 29 September, 2026.
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DATE OF DECISION: 28 October, 2026.
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UPLOADED ON : 29 October, 2026.
# CNR No. DLHC010110952026
+ CRL.A. 274/2026 & CRL.M.(BAIL) 581/2026
SHANKAR LAL .....Appellant
Through: Mr. Shivek Trehan, DHCLSC with
Mr. Akash Chandna, Advs.
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Hitesh Vali, APP. for the State
SI Varun, Insp. Pramod, PS Madhu
Vihar.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE DINESH BHATT
JUDGMENT
DINESH BHATT, J.
1. This hearing has been done through hybrid mode.
2. The present appeal has been filed by the Appellant under Section
415(2) read with Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023
against the judgment dated 23rd December, 2025 and the order on sentence
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dated 07 January, 2026 passed by the ASJ-(FTC), Shahdara District,
Karkardooma Courts, Delhi in FIR NO. 425/2017, P.S. Madhu Vihar, Delhi,
Section 302 IPC.
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3. Vide judgment dated 23 December, 2025, the accused was convicted
under Section 302 of Indian Penal Code for having committed the murder of
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deceased Balbir and vide order on sentence dated 07 January, 2026 the
Appellant was sentenced to rigorous imprisonment for life and to pay fine of
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Signed By:MONIKA
RANA
Signing
Date:29.10.2026 11:34
Rs. 50,000/- for offence punishable under Section 302 of IPC in default of
payment of fine, he was required to undergo simple imprisonment for two
years.
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4. The facts relevant for deciding the present appeal are that on 27
November, 2017 at about 1:15 am the accused along with his
neighbour/known person and deceased were travelling in the TSR. They got
down at ISBT Anand Vihar where PW1 was working as a helper at a kiosk of
cold drinks and chips and accused along with two boys purchased gutka from
his shop. Accused started quarrelling with one of the two boys and in the
quarrel, he picked up a danda placed upon a temporary barricade and hit the
same upon the head of the boy with whom he was quarrelling. The deceased
fell down after sustaining the blow and the accused hit another blow from the
danda. Thereafter the accused tried to flee but shopkeepers, auto drivers and
other public persons gathered and apprehended the accused and handed him
over to the police.
5. PW3 had taken the deceased to the hospital in his TSR where the
deceased was examined by the doctor (PW8). MLC was then prepared and he
was declared brought dead. Thereafter the post mortem was conducted by
PW9 who prepared the post mortem report Ex.PW9/A and mentioned that the
cause of death was shock due to cranio-cerebral damage consequent upon
blunt force/blunt object impact on head which was sufficient to cause death
in ordinary course of nature. Viscera of deceased were preserved. Blood-
soaked gauze piece and all clothes and shoes of deceased in sealed parcel were
handed over to IO with sample seal. Police had conducted the investigation at
the site, had collected, blood stained earth, danda (weapon of offence), etc.
from the spot. IO had also seized the blood stained jacket of the accused in
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Signed By:MONIKA
RANA
Signing
Date:29.10.2026 11:34
the presence of witnesses. IO sent them to FSL and arrested the accused,
completed investigation and filed the chargesheet. After obtaining FSL report,
a supplementary chargesheet was filed. Charges under Section 302 IPC were
framed against the accused, to which he pleaded not guilty and claimed trial.
6. Prosecution examined 24 witnesses. Thereafter, statement of the
accused under Section 351 BNSS was recorded. After completion of the
prosecution evidence, statement of accused under Section 351 of BNSS was
recorded where accused denied all the allegations and stated that he was
innocent. He stated that the witnesses as had deposed falsely against him,
deceased was in inebriated condition, he fell down of his own and his head
struck against the hard brick road floor. He had not given any danda blow to
the deceased. He was caught by the public unnecessarily and had done nothing
wrong. He, however, chose not lead any defence evidence.
7. Since PW1 is the only eyewitness in the case his evidence in entirety is
reproduced hereunder for the purpose of proper appreciation:
“02.08.2018
PW-1 /On SA
Statement of Sh. Nandan Singh Negi aged about 38
years s/o Balam Singh Negi r/o Village Gora, Post
Office Jorasi, District Nainital. Presently residing at
Shop No. 46-47, ISBT Kashmiri Gate, Delhi.
Occupatoin – Helper in that shop.
I am working as helper at the kiosk of cold drink and
chips etc. situated near the entry gate of ISBT, Anand
Vihar. On 27.11.2017, at about 1:15 am, one person had
purchased gutka from our shop, two other boys were
also present with him. After buying gutka from our shop,
the person who had purchased gutka from our shop,
started quarreling with one of those two boys who
accompanied him. Thereafter, he picked up a danda
which was placed there as in temporary barricade and
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Signed By:MONIKA
RANA
Signing
Date:29.10.2026 11:34
hit on the head of the boy with whom he was quarreling.
The said boy fell down on the ground after sustaining
the blow of danda on his head. He again hit with the said
danda on the boy who fell down on the ground. The
second also blow also hit on the head of the said boy.
On seeing this incident, other auto-drivers who were
present near the spot, also gathered there. After hitting
the boy, said persons tried to escape from the spot but
he was apprehended with the help of auto-driver by the
public persons. One auto-driver namely Abdul took the
injured boy to hospital in his TSR with the help of a
guard. I do not recollect the name of the said guard, so
far I remember his name as Dheer Pal. Police arrived
at the spot. Police made inquiries from me and I
narrated the aforesaid facts to the police and recorded
my statement. My said statement is Ex.PW1/A , it bears
my signatures at point A, which purchased gutka from
our shop and hit the boy on his head with danda, if
shown to me as he was stout and in my estimate, he was
aged 35 years. The said person is present today in the
court (the witness stares at the accused standing in the
dock and then identified him, witness has correctly
identified the accused). After apprehending the accused,
he was taken to police post at ISBT, Anand Vihar. I do
not know, if the name of the accused was also revealed
at the spot when he was apprehended. I do not know the
name of deceased.
[At this stage, Ld. Addl. P.P. for the State requests to
cross-examine the witness as he is resiling from his
previous statements made before the police. Heard. The
request is allowed].
XXX by Sh. Rakesh Mehta, Ld. Addl. P.P. for the State.
It is correct that when the accused was apprehended
by auto-driver with the help of public, his name was
revealed as Shankar son of Ravi Chaudhary r/o 372,
Samaypur, Tola, Khurja Gate, Chandausi, Sambhal. It
is also correct that police arrived at the spot and
accused was handed over to the police. It is correct that
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RANA
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Date:29.10.2026 11:34
the boy who sustained head injury, died. It is wrong to
suggest that the name of the said boy was revealed
Balveer s/o of Mahesh r/o A-11/B-2, IIT Campus, Delhi
(confronted with statement Ex. PW1/A where it is so
recorded at point A to A). It is correct that the rough site
plan of place of incident was prepared by the police at
my instance. It is correct that accused and the deceased
boy were quarreling even prior to purchase of gutka
from our shop. It is correct that during the quarrel,
accused was shouting by saying that “tera hamesha
yahi rahta hai, aaj tera khel hi khatam kar deta hun”.
XXXX by Sh. Pawan Kumar Sharma, Advocate for the
accused.
It is correct that presently I am residing at Shop no.
46-47, ISBT Kashmiri Gate, Delhi. I am presently
residing in a room in Canteen no. 6, ISBT, Sarai Kale
Khan, Delhi.
(Reply to court question – I clarify that I am doing my
job at Shop no. 46-47, ISBT Kashmiri Gate and it is not
my place of abode. I am living in ISBT, Sarai Kale Khan
in a room being Canteen no. 6. I keep on shifting my
place of work as per the tenure of contract or the returns
in the business to my proprietor).
XXXX continue.
I was getting salary of Rs. 350/- per day plus meal
twice a day. I am living at the above said address with
my three and four friends. On the date of incident, I was
right duty. I was alone at the shop. There is another shop
near my shop (Vol. That shopkeeper had also witnessed
the incident). That shop remains open for 24 hours. I do
not know how and by which of mode of conveyance,
those boys had come. They did not come straightway in
my shop, they were standing nearby shop prior to
purchase of gutka from my shop. They were present at a
distance of about 4-5 feet from my shop. No public
person gathered at the time of incident. No one
intervened in the quarrel between the accused and the
deceased. The accused and the deceased hurling abuses
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RANA
Signing
Date:29.10.2026 11:34
to each other but were not fighting prior to purchase of
the gutka. The danda was lying at a distance at about 3
to 4 from the place of incident. The length of the danda
was about 3 to 4 feet in length. Two dandas were in
cross (X) position. At that time, some auto-drivers used
to remain present near the place of incident and at the
time of the incident, some auto-drivers were present. It
is correct that the accused had purchased two gutkas
from my shop. It is wrong to suggest that I did not sell
gutka. It is correct that gutka selling is prohibited by the
Supreme Court. It is wrong to suggest that accused did
not purchase gutka from our shop. The accused and the
deceased were drunk. It is wrong to suggest that accused
did not lift any danda or that he had not beaten the
deceased or did not hit on the head of deceased with any
danda. It is wrong to suggest that I was not present at
my shop at the time of incident. It is wrong to suggest
that I did not witness the incident. It is wrong to suggest
that I am deposing falsely at the instance of the police. I
do not remember whether the said danda was of bamboo
stick or solid danda. The distance between the accused
and the deceased was about four feet from each other
when accused gave danda blow on the left side of his
head. The deceased fell down on his left side after
sustaining the danda blow. Deceased fell down on the
left side of my shop about five feet from my shop. The
width of the pavement in front of my shop, is about 4-5
feet. Accused was apprehended after chasing upto 10 to
12 meters. There were 6 to 7 auto-drivers and some
public persons who chased the accused. Accused was
taken to the police post and thereafter, police arrived at
the spot after 1 or 2 minutes of the incident. Those auto-
drivers were present at the spot, who apprehended the
accused when police arrive there. I do not know if police
made inquiries from those auto-drivers or not. My
statement was recorded when SHO arrived at the spot.
I signed my statement. My statement was recorded after
about two hours of the incident. I do not remember the
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Signed By:MONIKA
RANA
Signing
Date:29.10.2026 11:34
time when it was recorded but it was recorded on
27.11.2017. I do not know the cause of dispute between
the accused and the deceased. Accused and deceased
were imbalance/inebriated condition. The injured
person was taken to hospital by auto-driver Abdul, a
guard namely Dheer Pal and some policemen. It is
correct that I did not accompany them. In the morning
also, my other statement was recorded about 7:00/8:00
am at police post. The other shopkeeper had also given
his statement. It is wrong to suggest that no such
incident had taken place in my presence. It is wrong to
suggest that I cooked up a story and deposing the same
in the court about his incident.
RO&AC”
8. The evidence of this witness clearly establishes the fact that the
accused, in a quarrel, had hit the deceased with the danda available at the spot
and caused injuries resulting in death.
9. There is another witness who was an eyewitness and was also travelling
with the accused and deceased in the TSR on the day of incident i.e. PW5 who
however deposed that accused as well as deceased were travelling with him
in his TSR and deceased was in inebriated condition and fell down of his own
and suffered injuries on the head due to fall after alighting from the TSR. But
the testimony of the said witness was not found reliable and was rejected by
the ld. Trial Court on the ground that his deposition was not acceptable
considering the post mortem report exhibit PW9/A in which six injuries were
noted at the time of post mortem of the deceased and PW9 had categorically
ruled out the possibility that such injuries could have been caused by way of
fall upon rough ground surface or even rock under the influence of liquor or
drugs. Further, the said witness was a neighbour/known of the accused and,
therefore, the possibility of having been won over cannot be ruled out. Ld.
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Signed By:MONIKA
RANA
Signing
Date:29.10.2026 11:34
Trial Court also gave other reasons for discarding PW5’s testimony
particularly that the weapon of offence was recovered from the spot, which
had blood stains and had matched with the DNA of the deceased. The jacket
of accused seized after the incident was also found containing blood of the
deceased and there was no explanation given by the accused for the same
during the trial.
10. There is thus no infirmity in finding by the ld. Trial Court for not
believing the testimony of PW5.
11. The prosecution had also cited PW2 PW3 and PW4 as eyewitnesses,
however, they did not support the prosecution in entirety but still confirmed
that they were present near the entry gate of ISBT Anand Vihar and they heard
the noise of pakdo pakdo, they had gone there and had found a man lying in
injured condition having injuries on his head, one danda was also lying near
the spot and PW1 was also present there. One driver Abdul and guard Dheer
Pal were also present. The person who had caused injuries was caught when
he tried to run away and his name was told to be Shankar son of Ravi, Auto
drivers and police officials had also assembled at the spot and they took the
assailant to the police post. Auto driver Abdul along with guard lifted the
injured in the TSR and took him to hospital.
12. All these witnesses have confirmed and corroborated the story of PW1
to the extent that the deceased had suffered injuries and the weapon of offence,
i.e., danda was lying on the spot and told that the accused had hit the injured
by a danda on his head. PW1 himself not only confirmed the sequence of
events but also correctly identified the accused and deposed that after the
quarrel has taken place accused had picked up the danda from the temporary
barricade and hit the same on the head of the injured (since deceased), he fell
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Signed By:MONIKA
RANA
Signing
Date:29.10.2026 11:34
down and he gave another blow on his head. Injured was taken to hospital.
13. No material contradiction has been pointed out to show from the
testimony of these witnesses as to why they could not be believed and nothing
has been shown on the record as to why any of them would have deposed
falsely against the accused.
14. PW19, Assistant Director Forensic Science Laboratory, Rohini had
received 7 sealed parcels from SHO PS Madhu Vihar and had conducted
biological examination as well as DNA examination. She had detected blood
and the DNA of the deceased and opined that it matched with the shirt of
deceased, pant of deceased, sweat shirt of deceased, vest of deceased, jacket
of accused (wrongly mentioned as jacket of deceased), blood stained earth,
blood sample of deceased from spot and wooden danda. Witness had further
clarified in her examination that DNA examination had confirmed that blood
of the deceased was found on the jacket of accused exhibit C and her detailed
report was exhibit PW19/A.
15. One important clarification is required to be made in regard to article
referred to ‘as jacket of deceased’ as mentioned in Ex. PW19/A in FSL
examination report dated 27.03.2018. None of the parties has argued or raised
this issue but this fact seems to have been erroneously mentioned as jacket of
the deceased instead of ‘jacket of accused’ in the above said report. This point
is otherwise clear from the seizure memo Ex. PW13/A wherein it is mentioned
that jacket of the accused was seized in presence of the witnesses ASI Harbir
and HC Bhagat Singh by the IO and sealed with the seal of ‘KP’. The Forensic
Science Laboratory Report Ex. PW19/A mentioned that they have received
three sealed parcels, three plastic containers and one sealed envelope. The
sealed parcel with the seal of LBSH DFMT were containing Ex. A1 to A7
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RANA
Signing
Date:29.10.2026 11:34
described as clothes tissues of the deceased. Parcel B was also sealed with
the seal of LBSH DFMT containing Ex. D, blood in gauze of deceased. Parcel
‘C’ was the sealed cloth parcel which was sealed separately with the seal of
‘KP’. This jacket as referred to jacket of deceased thus appears to be a
typographical error and it should have been jacket of the accused. This fact is
further corroborated from the seizure memo Ex. PW13 and the testimony of
the attesting witnesses.
16. PW13, PW14, PW15, PW22 have deposed that, PW22 was posted at
SHO PS Madhu Vihar. PW13, PW14 and PW15 were posted as ASI and Head
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Constable at police post Anand Vihar Bus Stop. On 27 November, 2017 at
about 1:15am on hearing the noise they have come to the spot and found that
PW1 and TSR driver PW3 Abdul who produced accused Shankar Lal, one
security guard Dheer Pal was also present there and one person was lying on
floor in injured condition and blood was found there, they were told that the
accused Shankar has inflicted bamboo blows on the head of the injured lying
on the floor. They immediately shifted the injured in the TSR of Abdul with
the help of the security guard and PW15 accompanied them on the instruction
of the PW14. Accused was apprehended. PW14 had gone to the Lal Bahadur
Shastri Hospital where injured was declared brought dead and shifted to
mortuary. PW14 had then gone to the spot of the incident and recorded the
statement of PW1. PW22 had also reached the spot and crime team was called.
Rukka was prepared. FIR was registered. The investigation was thereafter
being taken over by the PW22 who inspected the spot. Site plan was prepared
and the accused was interrogated and was arrested and had recorded his
disclosure statement. PW2 also seized the danda , jacket of accused, blood
present on the spot, earth control, vide seizure memos Ex.PW9/D and
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Signed By:MONIKA
RANA
Signing
Date:29.10.2026 11:34
Ex.PW13/A respectively. PW13, PW14 and PW22 had correctly identified
the jacket of accused P1 in the Court and also PW2 had identified danda
(weapon of offence) in the Court. Accused had hit the deceased with a wooden
stick ( danda ) on his head which caused injuries which resulted in death of the
deceased. The post-mortem report also categorically mentioned that the
injuries found on the person of the deceased was sufficient to cause death in
ordinary course of events.
17. The finding of the Ld. Trial Court to the extent that the accused had hit
the danda on the head of the deceased causing his death is corroborated from
the oral evidence as well as the documentary evidence in the form of MLC
and post-mortem report and no infirmity is found in respect of the same. The
only question left for consideration is as to whether the finding of Ld. Trial
court in the facts and circumstances of the case made the accused entitled to
any benefit of Exception 4 Section 300 IPC or not.
18. Ld. Counsel for the Appellant vehemently argued that even as per the
prosecution story there was no previous enmity between the accused and the
deceased. There was a sudden quarrel between the two and the accused was
not carrying any weapon of offence and had picked up the danda which was
lying near the spot as a temporary barricade and had hit the same on the head
of the deceased in a state of passion. There was neither any intention or
premeditated preparation. Therefore, he was at least entitled to benefit of
Exception 4 and, therefore, his case was a fit case to be converted from
Section 302 to Section 304 IPC.
19. He has relied upon the following judgments: -
(i) Virsa Singh vs State of Punjab, AIR 1958 SC 465: 1958 SCC OnLine
SC 37 SC , stating that in the said judgment it was held that the four facts the
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RANA
Signing
Date:29.10.2026 11:34
prosecution must prove before a case falls under clause thirdly of Section 300
IPC, including that the particular bodily injury intended to be inflicted was
objectively sufficient in the ordinary course of nature to cause death.
(ii) Basdev vs State of PEPSU, AIR 1956 SC 488 (SC), stating that as per
the judgment the knowledge is attributed to an intoxicated man as if he were
sober, but intention must be gathered from the attending circumstances paying
due regard to the degree of intoxication.
(iii) Narayan Yadav vs State of Chhattisgarh, 2025 SCC OnLine SC 1603 :
2025 INSC 927 (SC) stating that in the said judgment it was mentioned that
‘fight’ necessarily involves two parties; stage-wise approach to the distinction
between murder and culpable homicide
(iv) Camilo Vaz vs State of Goa, (2000) 9 SCC 1 (SC) stating that as per
the judgment a danda-blow struck with knowledge that it was likely to cause
death, but without intention to cause death, falls under Section 304 Part II
IPC.
(v) Pulicherla Nagaraju vs State of A.P., (2006) 11 SCC 444 (SC) stating
that as per the judgment circumstances from which intention is to be gathered,
including whether the weapon was carried or picked up from the spot, whether
the act was in the course of a sudden quarrel, absence of prior enmity and
whether a single blow or several blows were dealt.
(vi) Surain Singh vs State of Punjab, (2017) 5 SCC 796 (SC) stating that
‘undue advantage’ means unfair advantage; The number of wounds is not a
decisive factor; a person who picks up a handy weapon on a sudden quarrel is
entitled to the benefit of Exception 4; conviction altered to Section 304 Part
II.
(vii) Atul Thakur vs State of Himachal Pradesh, (2018) 2 SCC 496 (SC)
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Date:29.10.2026 11:34
stating as per the judgement that six knife-blows in a sudden fight; neither the
weapon used nor the multiplicity of blows can by itself deny the benefit of
Exception 4; Multiple blows cannot be the sole basis for denying Exception
4; an overall view of the established facts must be taken.
(viii) Sukhbir Singh vs State of Haryana, (2002) 3 SCC 327 (SC) stating
that as per the judgment what the defence must probabilise under Exception
4; a sudden fight implies mutual provocation and the time gap between quarrel
and fight is the material consideration.
(ix) Sanjay vs State Govt. of NCT of Delhi & connected matter (Del.), CRL.
A. 48/2025 & CRL. A. 65/2025 , decided on 08.04.2026 stating that as per the
said judgment weapon picked up at the spot and ‘not brought from home or
kept ready’, quarrel over a cigarette; no premeditation; Exception 4 applied
where only a single wound was caused on the spur of the moment and no
undue advantage was taken; sentence of the period already undergone held
adequate.
(x) Mukesh vs State (NCT of Delhi) (Del.), CRL. A. 85/2025 , decided on
10.08.2026 stating that as per the judgment drunken scuffle between co-
workers; weapon ‘readily available at the site of the crime’ and not specially
brought; Exception 4 attracted; Section 304 Part II carries a maximum of ten
years; appellant released on the custody already undergone.
(xi) Shantilal Vs State of M.P. (2007) 11 SCC 243 (SC) stating that as per
the judgment imprisonment in default of payment of fine is not a sentence but
a penalty; the fine and the default term must not be harsh or excessive.
20. On the other hand, Ld. Counsel for the Respondents have also filed
written arguments stating that a quarrel had taken place between the Appellant
and the deceased and thereafter Appellant picked up a bamboo stick lying at
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Signed By:MONIKA
RANA
Signing
Date:29.10.2026 11:34
the spot and struck the deceased on his head. After the deceased fell down,
the Appellant inflicted another blow on his head and thereafter members of
the public apprehended the Appellant and handed him over to the police.
Deceased was removed to the hospital where he was declared brought dead
and PW9 had categorically given his opinion in his post-mortem report that
the cause of death of the deceased was due to shock consequent upon cranio-
cerebral damage caused by blunt force impact on his head which was
sufficient to cause death in the ordinary course of nature. The blood on the
wooden danda, DNA examination on the jacket of the accused had all
connected the accused with the death of the deceased. The Ld. Trial Court has
rightly rejected the fact that Exception 4 to Section 300 IPC was not
applicable. He has also relied upon the judgment Virsa Singh (supra).
21. Ld. Counsel for the Appellant has further urged that the second blow
theory was a material improvement as this fact was not mentioned by PW1 in
his statement under Section 161 CrPC. Similarly, PW3, PW5 and PW13 and
the disclosure statement of the Appellant all mentioned that a single blow was
inflicted. PW1 was declared hostile and in cross-examination by the
prosecution he was put a leading question to which he agreed. Thus, this fact
was not beyond doubt and no conviction can be based on any such fact. Ld.
Counsel further submitted that in any case in this case Exception 4 of Section
300 IPC was applicable and has stated that even as per prosecution case the
ingredients of the Exception were satisfied.
22. Ld. Counsel for the Respondent submitted that PW1 had mentioned in
his examination-in-chief that the accused had stated “ tera hamesha yahi rehta
hai aaj to iska kaam khatam kar deta hun” . Ld. Counsel for the Appellant has
stated that the Ld. Trial Court itself held that it cannot be said with certainty
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Date:29.10.2026 11:34
that he had intention to cause death of the deceased. This finding is in favour
of the Appellant and the State has not appealed against it, in support of his
other contention that this was a fit case to attract the benefits under Section
304 (II) IPC.
23. In this regard, it is important to note that this fact was not mentioned
by the witness PW1 in his examination-in-chief and only after he was declared
hostile, in cross-examination he was given certain suggestions to which he
replied ‘It is correct that during the quarrel, accused was shouting by saying
“ tera hamesha yahi rehta hai, aaj tera khel hi khatam kar deta hun ”. In this
regard, it is also important to note that the statement of the witness recorded
under Section 154 Cr.PC and signed by him Ex. PW1/A mentions the fact
that one boy purchased gutka from his shop and thereafter two boys started
quarrelling with each other and it suddenly got converted into a fight ( jhagda
marpit mein tapdil ho gaya ). Thereafter the boy who had purchased the gutka
in loud voice shouted and threatened the deceased to finish him and picked up
a danda kept as temporary blockade and hit it on the injured’s head, injured
fell down and blood started oozing out and accused tried to flee but PW1 with
the help of one Abdul and other public person apprehended him by chasing
him. Even though the witness had mentioned this fact in his statement to the
police that he had threatened the deceased that he would finish him but this
fact was not mentioned by the witness during his initial examination-in-chief.
24. Further, it is important to note that this witness in his statement Ex.
PW1/A had only mentioned about one danda blow ( aur gutka kharidane wala
ladka wahi par rasta rokne ke liye rakha baans ka danda uthakar dusre ladke
ke sir par bahot jor se de mara jo danda lagte his dusra ladka gir pada aur
uske sir se khoon nikalne laga aur danda marne wala ladka wahan se bhagne
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Signed By:MONIKA
RANA
Signing
Date:29.10.2026 11:34
laga jisko maine auto-driver Abdul ke maddad se va publilc a logon ke
maddad se bhagkar pakda ) while in his examination-in-chief recorded in the
Court had mentioned that accused had inflicted danda blow on injured’s head
and when he fell down he inflicted second danda blow on his head. Though
no material contradiction in the cross-examination of PW1 has been shown in
regard to the aforesaid fact of accused having given second danda blow after
the injured fell down on the ground, this may be due to the lack of giving
minute detail at the initial stage at the time of recording of statement by the
police. However, considering the fact that the witness had not mentioned in
his examination-in-chief but only admitted about the accused having extended
threat to finish him before he hit danda on his head entitles the accused to
benefit of doubt on this part of the witness statement.
25. The facts which are apparent from the testimony of witnesses’ available
on record in this regard are that the accused and deceased did not have any
previous enmity. They had started quarrelling at the spot after they had
purchased gutka from the shop of PW1 and during that quarrel accused had
suddenly picked up a danda which was lying near the spot as a temporary
barricade and hit the same on the victim’s head. Victim (deceased) had fell
down and accused gave another blow on his head and thereafter tried to flee
when people caught him and handed over him to the police.
26. The Ld. Trial Court in para 9 of its judgment has given the sequence to
proceed in a case where distinction under Section 300 and 304 IPC is required.
The Ld. Trial Court has given a finding that accused did not intend to cause
death of the deceased but had intended to cause such bodily injury which was
sufficient in ordinary course of nature to cause death. The Ld. Trial Court
came to the conclusion that the accused/Appellant was not entitled to benefit
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of Exception 4 as he had acted in an unusually cruel manner as after the
deceased had fallen down he had given another blow on his head which
clearly pointed out that he had acted in a cruel and unusual manner and,
therefore was not entitled for the benefit.
27. For appreciation of this fact it is important to note that the requirement
of Exception 4 to Section 300 is that culpable homicide is not murder if it is
committed without premeditation in a sudden fight in heat of passion upon a
sudden quarrel and without the offender having taken undue advantage or
acted in cruel or unusual manner. The Ld. Trial Court had heavily relied on
the fact that after the accused had given danda blow on the head of the
deceased he fell down but he gave another blow on the head and therefore this
second blow was an act of the accused of having acted in a cruel and unusual
manner.
28. For the appreciation of this part of the evidence it is important to refer
to the decision of the Coordinate Bench of this Court in Mukesh vs. State
(NCT of Delhi), 2026 SCC OnLine Del 5961, wherein a similar question of
law had arisen. The relevant portion is reproduced hereinbelow:
“20. The Supreme Court in Virsa Singh v. State of
Punjab, 1958 SCC OnLine SC 37, has explained the
meaning and scope of Clause (3) of Section 300 IPC in
the following terms:
“14. To put it shortly, the prosecution must prove
the following facts before it can bring a case under
Section 300 “thirdly”.
15. First, it must establish, quite objectively, that a
bodily injury is present.
16. Secondly, the nature of the injury must be
proved; These are purely objective investigations.
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17. 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.
18. Once these three elements are proved to be
present, the enquiry proceeds further and.
19. 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.
20. Once these four elements are established by
the prosecution (and, of course, the burden is on the
prosecution throughout) the offence is murder under
Section 300 “thirdly”. It does not matter that there
was no intention to cause death. It does not matter
that there was no intention even to cause an injury of
a kind that is sufficient to cause death in the ordinary
course of nature (not that there is any real distinction
between the two). It does not even matter that there is
no knowledge that an act of that kind will be likely to
cause death. Once the intention to cause the bodily
injury actually found to be present is proved, the rest
of the enquiry is purely objective and the only
question is whether, as a matter of purely objective
inference, the injury is sufficient in the ordinary
course of nature to cause death. No one has a licence
to run around inflicting injuries that are sufficient to
cause death in the ordinary course of nature and
claim that they are not guilty of murder. If they inflict
injuries of that kind, they must face the consequences;
and they can only escape if it can be shown, or
reasonably deduced, that the injury was accidental or
otherwise unintentional.”
21. As per the MLC, Ex. PW 18/A, of the deceased there
was only one visible injury of stab wound 3cm × 3cm in
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left iliac fossa. The trial court records the doctor's
finding in the post-mortem report, Ext. PW 21/A, in the
following terms:
“28. In fact, the PM report No. TC-743/15 dated 15-
12-2015 of deceased Rishi pal i.e. Ex. PW 21/A
shows that there were antemortem injuries present
on his body which were mentioned as follows:
“Surgical stitched wound measuring 3 cm is
present obliquely 6 cm from umbilicus in 4 o'clock
position in left Iliac region of abdomen ”. As per the
opinion on the said PM report, it had been
categorically stated that the cause of death of the
deceased was ‘haemorrhagic shock due to stab
injury to abdomen which was sufficient to cause
death in ordinary course of nature’ and the said
injury had been caused with a sharp weapon.”
22. As per the testimony of PW 1 Lalit, which appears to
be credible, the fatal injury has been inflicted by the
Appellant by inserting some object into the abdomen of
the deceased. The offence weapon i.e. scissor, was also
recovered at the instance of the Appellant. The post
mortem report also records the injury present on the
dead body was sufficient to cause death in the ordinary
course of nature. Therefore, seen in the light of law laid
down in Virsa Singh (supra), we are of the view that the
trial court has rightly recorded that the requisites for the
offence under Clause (3) of Section 300 IPC have been
established by the prosecution.
23. However, the law is well settled that even if the
case falls within any of the four clauses of Section 300
IPC, it could still be an offence of culpable homicide not
amounting to murder, if any of the Exceptions to Section
300 IPC are attracted. Reference in this regard may be
had to the decision of the Supreme Court in Sita Ram
Kuchhbedia v. Vimal Rana, 2026 SCC OnLine SC 293,
wherein it was observed that when the Court is
confronted with a question whether an offence disclosed
by the proved facts is “murder” or “culpable homicide
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not amounting to murder,” it would be appropriate to
approach the issue in the following structured manner:
“47. At the first stage , the Court must determine
whether the accused has committed an act which
has caused the death of another, that is to say,
whether the case involves a homicide. If such
causal connection between the act of the accused
and the death is established, the enquiry then
proceeds to the second stage, that is to say, whether
the act so committed amounts to “culpable
homicide” within the meaning of Section 299 IPC.
48. If the answer to this question is prima facie in
the affirmative, the Court must then enter upon the
third stage of enquiry viz. whether the facts proved
by the prosecution bring the case within the ambit
of any of the four clauses of Section 300 IPC, which
define murder. If the case does not fall within any
of the four clauses of Section 300, the offence
would be culpable homicide not amounting to
murder, punishable under either Part I or Part II
of Section 304 IPC, depending upon whether the
case attracts the second or the third clause of
Section 299 IPC.
49. Even if the case falls within the four clauses
of Section 300 IPC, the Court must further
examine whether any of the Exceptions to Section
300 IPC are attracted. If the case is covered by
any such Exception, the offence would fall back
to Section 299, that is, culpable homicide not
amounting to murder.”
(emphasis supplied)
24. The only controversy which thus, survives for the
consideration of this Court, lies within a narrow
compass, i.e., whether the Appellant is guilty of offence
of murder under Section 302 IPC or it would attract any
of the Exceptions to Section 300 IPC, to constitute an
offence of culpable homicide not amounting to murder
punishable under Section 304 IPC.
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25. Section 304 IPC deals with the cases not covered
by Section 302 and it divides the offence into two distinct
classes, i.e. (i) those in which the death is intentionally
caused; and (ii) those in which death is caused
unintentionally but knowingly. The cases of the first
category are punishable under Section 304 Part I,
whereas the cases under the second category are
punishable under Section 304 Part II of the IPC.
26. The intention being the state of mind, is to be
gathered from a cumulative effect of the circumstances
proved on record. As laid down by the Supreme Court
in Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC
444 : (2007) 1 SCC (Cri) 500, few or several of the
factors in combination will be decisive for ascertaining
whether there was any intention to cause death. The
relevant extract from the said decision reads thus:
“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
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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) 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.”
27. The learned counsel for the appellant, on the basis
of the evidence on record, has in effect, tried to bring
the case within Exception 4 to Section 300 IPC, which
reads as under:
300. Murder—
xxxx xxxx xxxx
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's having taken undue advantage or acted in a
cruel or unusual manner.”
“36. A Co-ordinate Bench of this Court in Sanjay Singh
v. State (NCT of Delhi), 2026 SCC OnLine Del 4184,
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noting the circumstances, where two men, who were
friends, were drinking together and had a fight over a
trivial issue of payment for a bottle of liquor, which led
to a sudden rage in a state of intoxication, leading to the
Appellant therein picking up a brick that was lying
outside and striking the deceased, opined that there was
no intention to cause death, and accordingly, the offence
under Section 302 was altered to one under Section 304
Part II of the IPC. The relevant extract from the said
decision reads thus:
“45. The circumstances of the case in hand fit
squarely within this well-settled principle. The two
men were friends. They were drinking together. The
quarrel arose without warning over something as
trivial as payment for a bottle of liquor. The deceased
slapped the Appellant. The Appellant, in a state of
intoxication and sudden rage, picked up a brick that
was lying outside and struck the deceased. There was
no prior plan. The Appellant was not carrying any
weapon. There was no motive to kill. There was no
intention, in the legal sense of the term, to cause death,
but there was knowledge, that striking a person
repeatedly on the head with a brick is likely to cause
death.
xxx xxx xxx
49. Having considered the entire evidence on
record, this Court is of the view that though the
Appellant had the knowledge that repeated blows with
a brick on the head could likely cause death, the
material on record does not establish a deliberate
intention to commit murder within the meaning of
Section 300 IPC. The present case would therefore fall
within the ambit of Section 304 Part II IPC.
xxx xxx xxx
52. Accordingly, the conviction of the Appellant
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under Section 302 IPC is altered to one under Section
304 Part II of the IPC . The sentence of rigorous
imprisonment for life awarded by the Ld. trial court is
modified and reduced to rigorous imprisonment for a
period of eight years. The fine imposed by the Ld. trial
court shall remain undisturbed.”
(emphasis supplied)
29. Considering the principle of law applicable to this situation, the facts
of the present case show that it was neither a case of previous animosity nor
accused had acted in a premeditated manner. A sudden quarrel between
accused and deceased started at the spot. Accused was not carrying any
weapon but had picked up the danda which was lying at the spot as a
temporary barricade and hit the same on deceased’s head. He fell down and
accused had given a second blow on the head of the deceased but in our
opinion the Ld. Trial Court overlooked the subtle difference between the act
of a person in heat of passion which might have resulted in more than one
blow but since both the two acts had occurred within a short period of time
where the Appellant appears to have had no cooling time and, therefore,
benefit of Exception 4 could have been considered.
30. In Sukhbir Singh v. State of Haryana (2002) 3 SCC 327 , the Court has
held that a minimum time gap which preserves the heat of passion and random
blows given during this period are not inherently cruel. Inflicting two swift
blows in a state of emotional outburst cannot be said to be automatically
branded as cruel or unusual.
31. In the present case overall facts clearly show that Exception 4 to
Section 300 was attracted and, therefore, the case is a fit case for alteration of
conviction of the Appellant from Section 302 IPC to one under Section 304
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Part II IPC.
32. A perusal of the nominal roll of the Appellant shows that he has already
served 05 years 10 months 14 days in jail as on 30.06.2026 besides earning
remission of 9 months.
33. Considering the aggravation and mitigating circumstances as noted by
the Ld. Trial Court, the Appellant is convicted for the offence under Section
304 Part II IPC and is sentenced to 07 (seven) years rigorous imprisonment
along with fine of Rs. 50,000/- in default to undergo simple imprisonment of
1½ (one and half) years.
34. The order be sent to the concerned Jail Superintendent for necessary
information and compliance.
35. Ordered accordingly.
DINESH BHATT
JUDGE
PRATHIBA M. SINGH
JUDGE
OCTOBER 28, 2026
SS/rs/Jayant
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