Vijay @ Veeru vs State

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 13.10.2026
Pronounced on: 16.10.2026
Uploaded on: 16.10.2026
# CNR No. DLHC010098092004
+ CRL.A. 564/2004 & CRL.M.A. 6740/2004 (suspension of
sentence)
VIJAY @ VEERU .....Appellant
Through: Mr. Rajbir Singh Sagar,
Advocate
Appellant is also present in
person
versus
STATE ....Respondent
Through: Mr. Satinder Singh Bawa, APP
with SI Rahul Ranjan, PS Harsh
Vihar
CORAM:
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
RAVINDER DUDEJA, J.
1. Appellant has preferred the present appeal under Section 374 of
the Code of Criminal Procedure, 1973 [“ Cr.P.C. ”] read with Section
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482 Cr.P.C., impugning the judgment dated 29 July, 2004
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[“ impugned judgment ”] and order on sentence dated 30 July, 2004,
passed by the learned Additional Sessions Judge, Karkardooma Courts
[ Trial Court ] in case FIR No. 243/2002 registered under Sections
308/323/34 of the Indian Penal Code, 1860 [ “IPC” ] at Police Station
Dilshad Garden [ PS ].
CRL.A. 564/2004 Page 1 of 14
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:16.10.2026
16:36

BRIEF FACTS:
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2. Briefly stated, the case of the prosecution is that on 20
September, 2002, an information was received at PS Dilshad Garden
regarding a quarrel behind the house of Master Balbir Singh, MLA in
Khera Village near GT Road. On this information, DD No. 15-A (Ex.
PW-4/A) was recorded and was marked to SI Rajesh Dangwal (PW-
6). On receipt of the same, SI Rajesh along with Constable Chaman
Lal (PW-4) reached at GTB Hospital, where, he obtained the MLC of
injured Arvind Goswami (PW-3) and Sharvan Goswami (PW-5). The
doctor had opined the nature of injuries to be “simple-blunt” on the
MLC of Arvind Goswami, while the MLC of Sharvan Goswami was
kept under observation. The MLC of Sharvan Goswami was deposited
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at GTB Hospital for awaiting the result. DD No. 15-A dated 20
September, 2002 was therefore kept pending.
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3. Same day, that is, 20 September, 2002, PW-6 recorded the
statement of Dheeraj Goswami (PW-2), wherein, he narrated that at
about 8.30 pm, he was going to the house of his friend Manish, and
while passing through a narrow lane at Village Khera, he saw that a
child was sitting there while stretching his legs. He asked the child to
fold his legs, but he did not do so, and therefore, he jumped over his
legs. Appellant Vijay and co-accused Kundan, Ajay and Jitender, who
were known to him, were also standing nearby. Kundan asked him as
to why he jumped over the legs of the child, upon which, he told him
that he had asked the child to remove his legs, but he did not do so,
and upon this, Kundan and other boys started beating and grappling
CRL.A. 564/2004 Page 2 of 14
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:16.10.2026
16:36

with him. He somehow managed to escape and ran towards his house
and told this fact to his brother Arvind and cousin Sharvan. Thereafter,
all three of them came in the narrow lane to confront the appellant and
the co-accused. However, Kundan caught Sharvan and appellant Vijay
@ Veeru threw stone on Sharvan, which hit him on his head and blood
started oozing out. Co-accused Ajay and Jeetu gave beatings to
Arvind. On hearing the commotion, a neighbour Vinod Kumar (PW-
11) came there. The appellant and the co-accused ran away from the
spot. PW-3 and PW-5 were taken to GTB Hospital for treatment.
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4. On 06 November, 2002, the MLC result of PW-5 was
obtained. The doctor gave the opinion that the injuries were grievous
in nature. FIR was therefore registered under Section 325/34 IPC.
During investigation, site plan was prepared. On the directions of the
Additional DCP, Section 308/34 IPC was also invoked. After
completing the investigation charge sheet was filed against the
appellant and co-accused under Section 323/308/34 IPC.
5. Charges were framed against the appellant and the other three
co-accused under Sections 308/34 IPC and 323/34 IPC, to which, they
all pleaded not guilty and claimed trial.
6. In order to prove its case, prosecution examined 12 witnesses,
including the three injured persons namely Dheeraj Goswami (PW-2),
Arvind Goswami (PW-3) and Sharvan Goswami (PW-5), neighbor
Vinod Kumar (PW-11), mother of PW-2 and 3 (PW-9), doctors who
examined the injured (PW-10 and 12) and SI Rajesh Dangwal, IO of
the case (PW-6).
CRL.A. 564/2004 Page 3 of 14
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:16.10.2026
16:36

7. Statements of the accused persons were recorded under Section
313 Cr.P.C., wherein, they denied all the incriminating evidence
against them and claimed that they were innocent. They stated that
they were lifted from their house by the police and were falsely
implicated in the case. They refused to lead defence evidence.
8. Upon conclusion of trial, the Trial Court, vide judgment dated
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29 July, 2004, convicted the appellant and the co-accused persons
under Section 323/34 IPC. Additionally, the appellant was also
convicted under Section 308 IPC. Vide order dated 30th July, 2004,
appellant was sentenced to undergo Rigorous Imprisonment for a
period of three years with fine of Rs. 1000/-, in default, three months
Rigorous Imprisonment for the offence under Section 308 IPC. He
was further sentenced to undergo Rigorous Imprisonment for six
months for the offence punishable under Section 323/34 IPC.
However, the other three co-accused, who were convicted under
Section 323/34 IPC, were granted the benefit of Probation of
Offenders Act.
9. Feeling aggrieved, appellant Vijay has challenged his
conviction and sentence by filing the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT:
10. The learned counsel for the appellant submitted that the
conviction under Section 308 IPC was unsustainable. It was argued
that the learned Trial Court erred in not appreciating the evidence in
proper perspective and the impugned judgment is based on
conjectures, surmises and material irregularities.
CRL.A. 564/2004 Page 4 of 14
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:16.10.2026
16:36

11. It was further submitted that the learned Trial Court failed to
consider the delay of approximately one and a half months in the
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registration of the FIR, inasmuch as, the incident occurred on 20
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September, 2002, whereas, the FIR was registered on 06 November,
2002.
12. It was further argued that the star witness of the prosecution,
that is, PW-5 Sharvan Goswami, who had suffered injuries during the
incident, could not identify the accused including the appellant and the
alleged witness, that is, PW-11 Vinod Kumar, also did not support the
prosecution case. It was further argued that the incident allegedly took
place in the night in a gali which was hardly 3-4 feet wide, thereby,
making it impossible to see the face of the person who caused injuries.
13. It was argued that the judgment of conviction has been recorded
despite material contradictions and deficiencies in the prosecution
evidence and the prosecution evidence was not scrutinized in
accordance with law.
14. The learned counsel further argued that the incident took place
at the spur of the moment in which a single blow was given in a
sudden fight, without premeditation, motive or ill-will and the doctor
did not opine that the injury was sufficient or was likely to cause
death. It was further submitted that there is no recovery of the
weapon/stone either from the spot or from the appellant. Reliance was
placed upon the judgment of Man Singh v. State NCT of Delhi , 2016
SCC OnLine Del 1050 to contend that the present case does not
warrant the invocation of Section 308 IPC and therefore the impugned
CRL.A. 564/2004 Page 5 of 14
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:16.10.2026
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judgment, convicting the appellant under Section 308 IPC, is liable to
be set aside.
15. It was also contended that the appellant had been treated
differently from the other co-accused persons who were granted the
benefit of probation and that he also deserves the similar relief. It was
further argued that the appellant is a poor person, having three school
going daughters, who are dependent upon him. Accordingly, the
learned counsel prayed that conviction under Section 308 IPC be set
aside and the appellant be extended the benefit of probation.
SUBMISSIONS ON BEHALF OF THE STATE:
16. Mr. Bawa, learned APP for the State, submitted that prosecution
has been able to establish the appellant’s involvement through the
testimonies of the material witnesses, particularly, PW-2 Dheeraj
Goswami and PW-3 Arvind Goswami, who had duly identified the
appellant as one of the assailants.
17. It was contended that the testimonies of PW-2 and PW-3 are
consistent, straight-forward and cogent and nothing has been brought
out in their cross examination which may come to the rescue of the
appellant.
18. With regard to the delay, it was submitted that the delay stands
adequately explained by the Investigating Officer (PW-6), who
deposed that the complaint was kept pending until the receipt of the
final medical opinion regarding the nature of injuries suffered by
Sharvan. It was argued that the opinion of the doctor on the MLC Ex.
PW-6/B confirms that the injuries suffered by PW Sharvan were
CRL.A. 564/2004 Page 6 of 14
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:16.10.2026
16:36

grievous in nature and PW-12 Dr. Sunil identified the handwriting and
signatures of Dr. Zahirul Islam and Dr. S.K. Jain on the MLC Ex. PW-
6/B.
19. It was argued that the finding of the learned Trial Court is in
consonance with the requirement of Section 308 IPC and therefore
there is no illegality or perversity in the findings arrived at by the
learned Trial Court and the appeal is therefore liable to be dismissed.
ANALYSIS AND REASONING:
20. The Court has carefully considered the rival submissions made
and have perused the material on record.
21. PW-2 Dheeraj Goswami, PW-3 Arvind Goswami, PW-5
Sharvan Goswami and PW-11 Vinod Kumar are the most material
witnesses of the occurrence, they being the eye-witnesses of the
occurrence. Admittedly, PW-5 Sharvan and PW-11 Vinod have not
supported the prosecution case and have turned turtle. PW-5 Sharvan
Goswami stated that he did not know any of the accused persons,
present in Court, namely, Ajay, Vijay, Jitender and Kundan and that
he saw them only for the first time in Court and that someone had hit
him with an unknown object on his head, as a result of which, he
suffered injuries and became unconscious. He was cross examined by
the learned APP with the permission of the Court, but in such cross
examination, nothing could be elicited, which may support the
prosecution version.
22. PW-11 Vinod Kumar deposed that when he reached the narrow
lane ( patli gali ), he saw that a quarrel was going on with Dheeraj,
CRL.A. 564/2004 Page 7 of 14
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:16.10.2026
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Arvind and Sharvan. However, he clarified that Dheeraj, Arvind and
Sharvan were not beaten in his presence. According to him, Sharvan,
who was bleeding, had told him that Veeru had picked up quarrel with
him and caused injuries to him. He further stated that the mother of
Dheeraj came at the spot and took the injured to GTB Hospital. This
witness was also declared hostile and was cross examined by the
learned APP with the permission of the Court, but nothing
incriminating could be elicited during such cross examination, which
may help the prosecution. His testimony that Sharvan had told him
that Veeru had caused him injuries is hearsay evidence and is
therefore not admissible in evidence.
23. It is thus evident that the testimonies of two star witnesses
namely Sharvan Goswami and Vinod Kumar are of no help in
establishing the guilt of the appellant.
24. However, the other two witnesses namely Dheeraj Goswami
(PW-2) and Arvind Goswami (PW-3) have duly supported the
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prosecution case. PW-2 deposed that on 20 September, 2002, at
about 8.30 pm, when he was passing through a narrow lane ( patli gali )
of Village Khera, a child was sitting on the way, extending his feet. He
asked the child to fold his legs, but he refused. He then walked scaling
over his legs. At that time, accused Veeru @ Vijay Kumar, Kundan,
Ajay, Jitender @ Jeetu and some other boys were standing there.
Accused Kundan uttered “ Are you not able to see and questioned as to
why he scaled over the legs of the child ”. On this, he told him that he
had already told the child to remove his legs from the way, but he did
CRL.A. 564/2004 Page 8 of 14
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:16.10.2026
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not do so. Then, accused Kundan stated “ I will see you ” and started
manhandling him. He and other accused persons then gave beatings to
him. He somehow managed to escape and rushed to his house and told
about the occurrence to his brother Arvind and cousin Sharvan.
Thereafter, he along with Arvind and cousin Sharvan rushed at the
spot in order to admonish the accused persons, but as soon as they
reached in the narrow lane, all the accused persons started beating
them. Accused Kundan caught Sharvan and accused Veeru hit with
stone, which was lying there on the head of Sharvan, as a result of
which, blood started oozing from his head. He further deposed that
Arvind was beaten up by accused Arvind and Jeetu.
25. In cross examination, PW-2 admitted that the lane was
approximately 3 to 4 feet wide and it was dark at that time, but
maintained that the assailants and objects used were visible. He further
stated that nothing was recovered from the accused in his presence.
26. PW-3 Arvind Goswami deposed that his brother Dheeraj
returned home in a perplexed condition and informed that he had been
beaten by appellant and the co-accused, whereupon, he, Dheeraj and
Sharvan went at the spot, where, they were assaulted by the accused
persons. He deposed that Kundan caught hold of Sharvan, while Vijay
@ Veeru struck Sharvan on his head with a stone, as a result of which,
blood started oozing from the said injury. He deposed that upon
hearing their alarm, their neighbourer Vinod Kumar and other persons
arrived, following which, the accused fled away. During cross
CRL.A. 564/2004 Page 9 of 14
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Signed By:VAISHALI
PRUTHI
Signing Date:16.10.2026
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examination, PW-3 admitted that it was dark at the time of incident,
but maintained that the assailants were visible.
27. During arguments, the learned counsel for the appellant failed
to point out any inconsistency or contradiction in the testimonies of
PW-2 and PW-3. Both these witnesses have withstood the test of cross
examination. Their testimonies are consistent and cogent. There is
nothing in their cross examination which may suggest that there was
any previous enmity or ill-will between the witnesses and the accused
and therefore there is no reason why PW-2 and PW-3 would depose
falsely against the appellant and the co-accused. Thus, there is no
reason to disbelieve the testimonies of PW-2 and PW-3.
28. Moreover, the testimonies of PW-2 and PW-3 find
corroboration from the MLCs Ex. PW-6/A and Ex. PW-6/B. The
MLC Ex. PW-6/A proves that PW-3 Arvind Goswami suffered simple
blunt injuries on his person, while MLC Ex. PW-6/B proves that PW-
3 Sharvan Goswami suffered grievous injuries on his person. The
prosecution case is not weakened merely because the other two eye
witnesses of the occurrence have turned hostile. Although, PW-5 did
not support the prosecution version regarding the identity and specific
role of the assailants, his testimony does not completely demolish the
prosecution case, particularly to the extent that it lends support to the
occurrence of quarrel in the lane. On the basis of the testimonies of
PW-2 and PW-3, it stands proved that the appellant and co-accused, in
furtherance of their common intention, assaulted and caused injuries to
PW-3 Arvind Goswami and PW-5 Sharvan Goswami.
CRL.A. 564/2004 Page 10 of 14
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:16.10.2026
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29. Admittedly, there is a delay of about 47 days in the registration
of the FIR, but the same is not fatal to the prosecution case, inasmuch
as, the explanation furnished by the Investigating Officer that the
complaint of Dheeraj Goswami was kept pending since the final result
on the MLC of Sharvan Goswami with regard to nature of injuries was
awaited. Once the final result about the nature of injury was obtained
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on 06 November, 2002, rukka Ex. PW-6/C was prepared on the
statement of Dheeraj Goswami and FIR was registered. Importantly,
the statement of Dheeraj Goswami was immediately recorded on the
same day on which the occurrence took place, thus there appears to be
no chance of manipulation or embellishment in the FIR. That being so,
the prosecution case cannot be thrown aside only on the ground of
delay in registration of the FIR.
30. The next question for consideration is as to whether prosecution
has been able to make out a case under Section 308 IPC in respect of
the injuries suffered by Sharvan Goswami. The provisions contained
in Section 308 IPC postulate doing an act with such intention or
knowledge and under such circumstances that if one by that act causes
death, he would be guilty of culpable homicide not amounting to
murder. This Court in the case of Man Singh ( supra ) and the Supreme
Court in the case of Bishan Singh v. State , (2007) 13 SCC 65, held
that before an accused can be held to be guilty under Section 308 IPC,
it is necessary to arrive at a finding that the ingredients thereof,
namely, requisite intention or knowledge was existing. There cannot
be any doubt whatsoever that such an intention or knowledge on the
CRL.A. 564/2004 Page 11 of 14
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Signed By:VAISHALI
PRUTHI
Signing Date:16.10.2026
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part of the accused to cause culpable homicide is required to be
proved. Whether or not the accused had the requisite intention or
knowledge has to be determined on the facts and circumstances of
each case. The nature of weapon used, the portion of the body in
which the injuries are caused, the nature of injury and the conduct of
the accused, at, before or after the occurrence are the determinative
factors in ascertaining the intention or knowledge.
31. In the present case, as even observed by the learned Trial Court
itself, the incident arose at the spur of the moment when PW-2, PW-3
and PW-5 had gone to confront the appellant and the co-accused
persons for causing injury to PW-2. Admittedly, there was no
premeditation or planning to cause injuries to Sharvan Goswami and
Arvind Goswami. In fact, if the evidence is to be believed, the injury
was caused to PW-5 Sharvan Goswami with a stone, which was
picked up from the spot itself. Although, PW-2 and PW-3 referred to
the use of a stone, no such stone was recovered either at the instance
of the appellant or from the place of occurrence. The absence of
recovery of weapon, by itself, may not prove fatal to the prosecution
case, but the nature of weapon used may help in determining the
intention of the accused persons. There is no evidence on record as to
what was the size of the stone or whether it was blunt or sharp-edged,
and therefore in the absence of such evidence, it cannot be ascertained
whether the weapon used was a dangerous weapon. The doctor, in the
present case, has also not stated that the injuries were sufficient in the
ordinary course of nature to cause death.
CRL.A. 564/2004 Page 12 of 14
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Signed By:VAISHALI
PRUTHI
Signing Date:16.10.2026
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32. The manner in which the incident took place, does not suggest
that the appellant had an intention or knowledge of inflicting injuries
which would attract provision of Section 308 IPC. Having regard to
the same, I am not persuaded to hold that the appellant could be
convicted for the offence punishable under Section 308 IPC.
Therefore, considering the facts and circumstances of the case and the
fact that the nature of injury inflicted upon the person of Sharvan
Goswami being grievous in nature, and the one suffered by Arvind
Goswami being simple, the conviction ought to have been recorded
under Section 323/34 and Section 325 IPC.
33. Hence, in view of my aforesaid discussion, the appeal deserves
to be partly allowed. The conviction of appellant under Section 308
IPC is hereby set aside. He is convicted under Section 323/34 and
Section 325 IPC.
34. On the point of quantum of sentence, the learned counsel argued
that appellant is a first time offender and has clean antecedents. He is a
poor person, having three unmarried daughters, who are dependent
upon him. Claiming parity with the co-accused persons, the appellant
prays for release on probation.
35. The offence under Section 325/323 IPC, does not prescribe any
mandatory minimum sentence. The sentence provided under the
aforesaid provisions is flexible, leaving discretion with the Court to
impose imprisonment for a term which may extend to seven years and
fine. The benefit of probation can be extended wherever the statute
does not specifically exclude its operation or prescribe a compulsory
CRL.A. 564/2004 Page 13 of 14
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Signed By:VAISHALI
PRUTHI
Signing Date:16.10.2026
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minimum punishment and therefore in the absence of such a
restriction under Section 325/323 IPC, the Court has discretion to
extend the benefit of probation to the appellant if the circumstances of
the case so justified. However, before such an order is passed, it is
deemed appropriate to call for a Social Investigation Report from the
Probation Officer.
36. Registry is therefore directed to requisition the Social
Investigation Report of the appellant from the Probation Officer and
place the same on record on or before the next date.
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37. List on 04 November, 2026 for consideration of report and for
further orders.
RAVINDER DUDEJA, J.
OCTOBER 16, 2026/na
CRL.A. 564/2004 Page 14 of 14
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:16.10.2026
16:36