Full Text
HIGH COURT OF DELHI
Date of Decision: 16th SEPTEMBER, 2025 IN THE MATTER OF:
PRADEEP @ VIKRAM @ VICKY .....Appellant
Through: Ms. Aashaa Tiwari, Advocate along
Through: Mr. Aashneet Singh, APP for the State.
HON'BLE MR. JUSTICE VIMAL KUMAR YADAV
JUDGMENT
SUBRAMONIUM PRASAD, J.
1. The present Appeal has been filed against the Judgment on conviction dated 09.01.2004, and the Order on Sentence dated 13.01.2004, passed by the Learned Additional Sessions Judge, Delhi (hereinafter referred to as “Trial Court”) in Sessions Case No.94/2002, arising out of FIR No.123/2002, registered at Police Station, Sarai Rohilla, under Section 302 of the Indian Penal Code, 1860 (“IPC”). By the Judgment on conviction, the Appellant herein, Pradeep @ Vikram has been convicted for committing the murder of one Gurdeep Singh @ Titu. By a separate Order on Sentence dated 13.01.2004, the Appellant has been sentenced to undergo rigorous imprisonment for life along with fine of Rs.5,000/- and in case of default of payment of fine, he was further directed to undergo rigorous imprisonment for six months for the commission of the offence punishable under Section 302 of IPC.
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. On 23.09.2002, at about 10 AM, Gurdeep Singh @ Titu after eating food had gone to play Holi with his friends Harpreet Sigh (PW-3), Bhupender Singh (PW-7), Amit Sharma (PW-4) and Inderjeet (PW-9). At around 02:30 PM, Amit Sharma came to Inderjeet Singh‟s (PW-8) house and told him that the accused Pradeep @ Vikram (“Pradeep”) had administered some chemical to the deceased Gurdeep Singh @ Titu (“Gurdeep Singh”). b. Upon which, Inderjeet Singh (PW-8) along with his father and Amit Sharma (PW-4) immediately went to H.No. B-1550 near Agarsen Dharamshala, where the deceased Gurdeep Singh was lying unconscious and his friends Inderjeet (PW-9), Bhupender Singh (PW-7), and Harpreet Sigh (PW-3), were holding him. c. Upon asking the deceased‟s friends, Inderjeet Singh (PW-8) was told that the accused Pradeep, along with the deceased Gurdeep Singh, Amit Sharma (PW-4), Bhupender Singh (PW- 7), Inderjeet (PW-9) and some other boys were playing Holi in the street in front Kartarial Music System shop and some of the boys had consumed liquor. d. The aforementioned friends started tearing the clothes of each other. The accused Pradeep started tearing the clothes of the deceased Gurdeep Singh. The deceased Gurdeep Singh objected to the same but still the accused Pradeep tore the clothes of the deceased Gurdeep Singh. Further, while dancing at the DJ, the accused Pradeep forcibly put a chemical, which he had in a bottle in his pocket into the mouth of the deceased Gurdeep Singh after a verbal altercation and ran away from there. e. After being made to drink the chemical, the deceased Gurdeep Singh was repeatedly saying in front of everyone that the accused Pradeep had made him drink something unknown and he was feeling a burning sensation. f. Inderjeet Singh (PW-8) took the then unconscious Gurdeep Singh to Hindu Rao Hospital where after about an hour Gurdeep Singh died. He further stated that the accused Pradeep had administered chemical with the intention to kill his brother Gurdeep Singh and his brother Gurdeep Singh had then expired. g. On the statement of Inderjeet Singh (PW-8), the IO had prepared Rukka and sent the same to the Police Station Sarai Rohilla and on the basis of the said Rukka, the FIR bearing No.123/2002 was registered by the Duty Officer at Police Station Sarai Rohilla and handed over the investigation to Additional SHO, Sarai Rohilla. h. During the investigation, the Additional SHO recorded the statements of the witnesses under Section 161 of Code of Criminal Procedure, 1973 (“CrPC”). He also inspected the place of incident, prepared a site plan, had photographs of the spot taken, and also seized an amplifier, VCD player, speakers and CD‟s from the spot through a seizure memo Ex. PW-10/A and deposited the same with Malkhana. i. It is stated that following completion of investigation, a chargesheet dated 29.03.2002 was filed against the accused Pradeep for the offence under Section 302 of IPC. The Appellant was formally charged with having committed murder by intentionally pouring the chemical into the mouth of the deceased Gurdeep Singh with the knowledge that such act was likely to cause death. The accused Pradeep pleaded not guilty and claimed trial. j. On 30.03.2002, the Additional SHO got the post-mortem of the deceased Gurdeep Singh conducted at Hindu Rao Hospital. After the post-mortem, the „dead-body‟ was handed over to the relatives of the deceased Gurdeep Singh. k. Thereafter, on 08.04.2002, the accused Pradeep was arrested in the case. l. Pursuant thereto, the Additional SHO received the post-mortem report bearing No.HRH 39/2002 i.e. Ex. PW-19/A of the deceased Gurdeep Singh, on which the Doctor had opined „cause of death deferred till the report of the chemical analysis is available‟. m. It is stated that on 10.05.2002, the Additional SHO sent the Ex. PW-19/A for examination under the seal the deal of „Gurdeep Singh‟ to F.S.L. Malviya Nagar. n. Thereafter, the F.S.L Report bearing No.FSL2002/C-1207 dated 01.11.2002 i.e. Ex. PW-22/G was sent to the Station House Officer, Police Station, Sarai Rohilla with the results of examination recorded therein as „on chemical examination, exhibits 1, 2A, 2B & 2C have positive tests for the presence of Organophosphorus Insecticides‟ o. During trial, the prosecuting examined 22 witnesses including members of the PCR, investigating officers, medical and forensic experts, and alleged eye witnesses. The Defence led only one witness. p. The Trial Court convicted the Appellant, Pradeep under Section 302 of IPC, holding that the prosecution had succeeded in establishing the commission of murder of Gurdeep Singh beyond reasonable doubt. q. The Trial Court was of the opinion that the incident as alleged by the prosecution, had taken place at about 2 or 2:30 PM and thereafter, the deceased Gurdeep Singh was moved to the Hospital and they reached about 3 or 3:30 PM and the same has been proved by the testimony of Satpal Singh PW-5, who is the father of the deceased Gurdeep Singh and Inderjeet Singh PW- 8, who is the brother of the deceased Gurdeep Singh and Constable Bhim Singh PW-15, who was posted on 29.03.2002 as duty Constable at Hindu Rao Hospital. They proved the DD entry and case was registered at about 4:30 PM. In lieu of the above, the Trial Court was of the viewpoint that there was no delay in recording the FIR and it is natural to consume the time in recording the FIR as well as to proceed into investigation by the police r. The Trial Court noted that it is natural that once the incident had taken place the role of the police starts thereafter in the investigation and whatever the possible efforts should be taken by the police to solve the case were taken by the investigating agency. So, it cannot be considered and ruled out that this case has been registered in connivance of the PW-5 and PW-8 of the deceased Gurdeep Singh. s. The Trail Court also noted that it has been revealed from the overall testimonies that the death has occurred due to consuming of chemical by the deceased Gurdeep Singh. It is further the duty of the prosecution to prove as to who has poured the chemical into the mouth of the deceased Gurdeep Singh and the place of incident. The same has been proved by the prosecution even from the testimonies of hostile witnesses and if the testimonies of prosecution witnesses were to be considered, it should be considered as quality of evidence not as the quantity of evidence. t. The Trial Court took into account the FSL report i.e. Ex. PW- 22/G. The said FSL report dated 01.11.2002 gives positive test of presence of Organophosphorus Insecticides in the chemical examination. For ease of reference, the FSL report is being extracted hereinbelow: u. The Trail Court also considered the distinction between the murder (Section 300 of IPC) and culpable homicide (Section 299 of IPC) not amounting to murder. The Trial Court emphasized on the key words used in the various clauses of Section 299 and 300 of IPC. It further stated that two aspects should be considered during the case of murder: (i) intention; and (ii) knowledge. So, as far as the intention is concerned for Section 299 of IPC, the person commits culpable homicide if the act by which the death is caused is done. Further, as far as intention is concerned for Section 300 of IPC subject to certain exceptions culpable homicide is murder if the act by which the death caused is done. As far as knowledge is concerned for Section 300 of IPC is that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. v. The Trail Court was of the opinion that the accused Pradeep had the intention of causing death to the deceased Gurdeep Singh and that he had the knowledge that his act of forcibly putting the chemical in the mouth of the deceased Gurdeep Singh will cause death to him. Therefore, the intention has been proved by the prosecution as well as the accused Pradeep with the knowledge that act is so imminently dangerous that it must in all probability cause death and death was caused to the deceased Gurdeep Singh due to the intake of poison. The same has been proved by the FSL report i.e. PW-22/G. w. Vide Judgment on conviction dated 09.01.2004 and Order on Sentence dated 13.01.2004, respectively the Trial Court convicted the Appellant herein for commission of offence punishable under Section 302 IPC and the Appellant herein was sentenced to undergo rigorous imprisonment for life and a fine of Rs.5000/- and in case of default of payment of fine, he was further directed to undergo rigorous imprisonment for six months for the commission of the offence punishable under Section 302 IPC. x. It is these Orders passed by the Trial Court which are under challenge in the present Appeal.
4. Learned Counsel for the Appellant submitted that the Trial Court has gone wrong in not appreciating: i) that the prosecution has not laid any evidence from which the cause of the death of the deceased could be definitely ascertained; ii) Doctor (PW-19) does not state or in his oral testimony before the Trial Court that the death in the present case was caused due to the intake of some chemical substances and that the said chemical substance was sufficient in the ordinary course of nature to cause the death of the deceased which does not find mention in the Post Mortem Report i.e. Ex-PW-19/A; iii) the Post Mortem Report i.e. Ex-PW-19/A does mention any cause of the death as the Doctor (PW-19) was awaiting the finding of the forensic report; and iv) the forensic report was not placed for perusal before the Doctor by the Prosecution and hence, the prosecution did not prove the cause of the death in the present case.
5. It is submitted by the Counsel for the Appellant that even if it was to be assumed that the deceased had been forced to consume some chemical substance, in the absence of a clear cause of death and Post Mortem Report‟s findings to that effect, the Trial Court could not have convicted the Appellant herein under Section 302 of IPC. Further, he submitted that the case of the prosecution rested on the sole testimony of one witness Amit Sharma (PW-4). All the other independent witnesses namely, PW-2, PW-3 and PW-7 had not supported the case of the prosecution and had been declared hostile. He also submitted that in these circumstances, the Trial Court erred in relying on the sole uncorroborated testimony of PW-4 for the purpose of convicting the Appellant herein.
6. He also submitted that the testimony of PW-4 does not inspire the confidence as it is bereft of material particulars and details as he is unable to recollect the colour and size of the glass bottle in question and whether it was having a cock and screw cover. The Trial Court failed to take into consideration that the entire case of the prosecution was false and the FIR in the case was registered at the instance of the brother of the deceased, PW-4 who was not an eye witness to the incident. He further added had PW-4 seen the incident as proclaimed by him, he ought to have been made the first informant.
7. Learned Counsel for the Appellant also submitted that the Trial Court failed to appreciate that the so called bottle from which the substance was poured into the mouth of the deceased was never seized by the investigating agency nor was it ever ascertained as to where and from whom the said chemical was bought by the Appellant. Further the Trial Court also failed to take into account the wholly unexplained delay in registering the FIR in the case as the occurrence of the incident, as per the prosecution story, the incident took place on 29.03.2002 at 02:30 PM wherein DD No.23A was recorded on the same date on 04:30 PM and the FIR was registered formally at 06:55 PM which is more than four and half hours after the incident.
8. Learned Counsel for the Appellant also shed light on the fact that MLC of the deceased records the history as “some unknown poison. History of spray of chemical over face”. The patient was admittedly brought to the hospital by his brother Inderjeet who had then learnt about the incident from PW-4. Had the name of the accused be known at that time, it would have found mentioned in the MLC. He further submitted that this fact proves that the prosecution had no idea as how the deceased was in the state he was and it was only subsequently that the Appellant herein found himself implicated in the case.
9. It is pertinent to mention that the Appellant herein had filed an Application being CRL.M.B.223/2004 for suspension of sentence before this Court. This Court vide Order dated 05.08.2004 dismissed the said Application which reads as under: "We have heard at considerable length Mr. Gandhi, learned senior counsel for the appellant. We have also been taken through the judgment and parts of the evidence which the prosecution has led against the accused. We do not wish at this stage to express any opinion on tire merits of the contention urged before us lest the same causes prejudice to one or the other party. All that we need say is that the present is not in the facts and circumstances of the case and the nature of the evidence on record a fit case where we ought to suspend the life sentence imposed upon the appellant. The application for suspension of sentence is accordingly dismissed."
10. It is also stated that the Appellant herein filed another Application being CRL.M.B. 323/2005 before this Court for suspension of sentence, wherein, this Court was pleased to allow the said Application of the Appellant vide Order dated 12.07.2005 which reads as under: "We have heard Mr.S.S.Gandhi, learned Senior Advocate in support of the application for suspension of sentence. Mr.Gandhi submits that incident has its genesis in Holi revelry which was going on. He submits that as per prosecution story, the accused had initially threatened to throw chemical and later on forcibly administered the same on the allegations of his clothes having been torn by deceased. Mr.Gandhi submits that postmortem report did not give any cause of death and CFSL report was not sent to the Doctor for opinion. He submits that the ingredients of Section 302 IPC would not be mer. It is not necessary for us to go into appreciation of evidence at this stage. Appellant has already undergone more than three years of incarceration and is a young man of 24-26 years. Considering the circumstances of the incident as also other facets, we are of the view that this is a fit case where the sentence of the appellant should be suspended pending hearing of the appeal. We, accordingly, suspend the sentence of the appellant Pradeep @ Vikram @ Vicky pending hearing of the appeal on his furnishing a personal bond in the sum of Rs. 15,000/- with one surety of the like amount to the satisfaction of the trial court/duty magistrate. The Appellant shall report to the concerned police station on 7th of each alternate month. Application stands disposed of.
11. Before adverting to the merits of the case, it is apposite for this Court to examine and evaluate the testimonies of the witness statements given before the Trial Court.
12. Amit Sharma, PW-4 has deposed that on 29.03.2002, on Holi, he along with his friends Bhupinder Singh, Inderjeet, Gurdeep Singh and Hardeep Singh and Pradeep - who was present in court, were playing Holi in front of Agrasen Dharamshala and the music system was playing at B-1550. They all were dancing and applying color to each other. The boys started tearing the clothes of each other. The deceased Gurdeep Singh started tearing clothes of the accused Pradeep @ Vikram. On this, the accused Pradeep warned him that in case he tore his clothes he would throw chemical on him. Even otherwise, the deceased Gurdeep Singh tore the clothes of Pradeep. Upon which, the accused Pradeep took out a small glass bottle and administered forcibly the chemical into the mouth of the deceased Gurdeep Singh. The deceased Gurdeep Singh was feeling uneasy and he was saying that the accused Pradeep had administered chemical and he became unconscious. Later, his brother Inderjeet and father reached the place of incident and took the deceased Gurdeep Singh to the hospital where he had expired.
13. Nothing has been elicited from the cross-examination that the accused Pradeep did not administer any chemical to the deceased.
14. Harpreet Singh, PW-3 has deposed that on 29.3,2002, at about 2 or 2:30 PM, he along with Amit Sharma, Bhupinder Singh, Inderjeet Singh and some other boys were playing Holi, on the street in front of Katarial Music System Shop and some of the boys had consumed liquor. The said boys started tearing the clothes of each other. The accused Pradeep started tearing the clothes of the deceased Gurdeep Singh. The deceased Gurdeep Singh objected to the same but still the accused Pradeep tore his clothes. The accused Pradeep then took out a small glass bottle and poured something on the deceased Gurdeep Singh‟s head which went in his mouth. Harpreet Singh stated that, thereafter, the deceased continued dancing for about half an hour and later fell down.
15. Nothing has been elicited from PW-3‟s cross examination which would raise a doubt that he did not see the accused Pradeep pouring chemical in the mouth of the deceased Gurdeep Singh.
16. Inderjeet Singh, PW-8 has deposed that on 29.3.2002, his younger brother, the deceased Gurdeep Singh had gone to celebrate Holi along with his friends at about 11 AM. At about 2:30 PM his friend Amit Sharma came to his house and told him that the accused Pradeep had administered some chemical to my brother, the deceased Gurdeep Singh. Inderjeet Singh stated that he along with his father reached near Agrasen Dharamshala where his brother, the deceased Gurdeep Singh was lying unconscious on the road and thereafter, he was taken to Hindu Rao Hospital where the deceased Gurdeep Singh expired in the hospital.
17. A plain reading of the depositions of PW-1, PW-3 and PW-8 thus indicates that the Appellant herein poured some liquid chemical in the mouth of the deceased Gurdeep Singh and the deceased Gurdeep Singh died out of poisoning. Although, neither the Doctor‟s statement nor the FSL Report indicates the nature of poisoning. There is no material given by the Prosecution that the liquid administered to the deceased Gurdeep Singh is so poisonous that it would have definitely caused death in all circumstances.
18. The Post Mortem Report dated 30.03.2002 indicates alleged history of giving some poisonous substance to the deceased Gurdeep Singh. The Post Mortem Report also states that the opinion regarding the cause of death is deferred till the report of the chemical analysis of viscera is available. Further, the FSL Report only indicates that on examination of viscera, there is a presence of Organophosphorus Insecticides. The prosecution has not led any material to show the quantity of Organophosphorus Insecticides present after the examination. The Doctor has also not stated about the nature of insecticides in his chief nor has any material been produced by the prosecution to show as to how much quantity of Organophosphorus Insecticides has been consumed by the deceased which would definitely lead to his death.
19. 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 culpable homicide that amount to murder by setting a higher threshold of intention and knowledge.
20. 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:-
21. 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 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.
22. 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 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 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."
23. The Apex Court in Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444, has observed as under:
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."
24. 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:
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 death. The distinction is fine but real and if overlooked, 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‟; 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 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 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."
25. 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:
(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."
26. Applying the said parameters to the facts of the present case wherein, PW-8, who was the complainant in the present case, was not even an eyewitness to the entire incident. It is stated that all the boys namely Harpreet Sigh, Bhupender Singh, Amit Sharma, Inderjeet Singh, the deceased Gurdeep Singh and the accused Pradeep were under the influence of alcohol. The eye-witnesses have stated that the deceased Gurdeep Singh and the accused Pradeep started tearing each other‟s clothes. It is stated that the deceased Gurdeep Singh was the first one to tear the clothes of the accused Pradeep and then he later he was administered with chemical by the accused Pradeep. In view of the fact that there was a quarrel and the boys, including the deceased Gurdeep Singh and the Appellant herein, came together to celebrate Holi, it cannot be said that there 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 chemical but the said chemical bottle had not been not seized by the police.
27. Furthermore, the Doctor in his post-mortem report has not stated the clear cause of death. He also did not depose or state in his cross-examination that the death in the present case was caused due to intake of some chemical substance or that the said chemical substance was sufficient in the ordinary course of nature to cause death. Whereas, the FSL report showed the presence of Organophosphorus Insecticides in the viscera of the deceased Gurdeep Singh. However, the said report was not placed before the Doctor by the prosecution. At best, the present case falls under the purview of Section 299 of IPC and not Section 300 of IPC.
28. In view of 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 of IPC punishable under Section 302 of IPC. Accordingly, the conviction of the Appellant under Section 302 of IPC is set aside. Instead, the Appellant is convicted under Section 304 Part-II of IPC. The definition between Section 299 and 300 IPC depends on culpability. The material on record only indicates that the Appellant knew that the material which he was pouring on the deceased was poisonous in nature but there was no intention to cause death or cause such bodily injury which was likely to result in the death of deceased.
29. The Appellant had been in custody from 08.04.2002 till 12.07.2005, and has thus undergone more than 3 years and 29 days of incarceration.
30. Considering the facts and circumstances of the case, this Court is inclined to uphold the conviction. The Appellant be released on the sentence already undergone.
31. The Appeal is partly allowed in the above terms. The impugned judgment of conviction and order on sentence dated 09.01.2004 and 13.01.2004, respectively passed by the learned ASJ, Delhi are modified to the extent indicated hereinabove. Bail bonds be released.
SUBRAMONIUM PRASAD, J VIMAL KUMAR YADAV, J SEPTEMBER 16, 2025 JR/sz