Robin Massey @ Monu v. State NCT of Delhi

16. The forensic evidence included the seizure of blood-stained stones, a brick slab, soil, slippers, and hair strands (Ex. PW[5] series). The articles were sent to FSL and the DNA report confirmed the presence of human blood matching the deceased's profile on some of these items. These findings were accepted as confirmatory rather than standalone proof.

17. In evaluating the evidence led by the prosecution, this Court is mindful that credible and consistent eyewitness testimony can form the basis for conviction even in the absence of corroborative material, while circumstantial evidence must meet the test of forming a complete and unbroken chain that leads only to the guilt of the accused. In the present case, the prosecution has relied on the direct testimony of three witnesses— PW[4] Akash, PW[8] Rahul, and PW[9] Arvind Kumar Tripathi—as well as physical and forensic evidence, supported by medical opinion.

18. The occurrence in question took place during the intervening night of 6th and 7th October, 2014, at around 1:30 to 2:00 a.m., near the T-point adjoining MCD Park, Chhatarpur Road, New Delhi. PW[4] Akash, who was residing at an under-construction house near the spot, deposed that he had stepped out to relieve himself when he saw a group of 3–4 persons near a TSR, engaged in a verbal exchange. He stated that the Appellant, Robin Massey @ Monu, began arguing with one of the persons and struck him with a brick. After the victim fell to the ground, the Appellant continued to hit him with a stone slab on the head. Akash’s statement was consistent with his presence near the scene, and his version remained substantially unshaken during cross-examination.

19. PW[9] Arvind, who was employed to watch over a nearby workshop and was present at the tea stall of his maternal uncle at the relevant time, also deposed that he witnessed the accused striking the deceased. He specifically stated that he saw four boys get down from a TSR, and soon thereafter, one among them began hitting another with a smaller stone, then a larger stone, and finally with a flat slab (―silli‖). PW[9] testified that he flagged down a PCR van and alerted the officials, who then reached the spot. His testimony was consistent in material particulars with that of PW[4] and his role in summoning the police was independently corroborated by the PCR officials.

20. PW[8] Rahul, who ran a tea stall in the locality and claimed to be heading to purchase medicine due to stomach pain, initially stated that he witnessed the Appellant hitting the deceased with a stone. However, when recalled for further cross-examination, Rahul retracted his testimony, denied being present at the scene, and claimed he was coerced by the Investigating Officer into making his earlier statement. He further denied operating a tea stall or living at the address attributed to him. Despite this retraction, the Trial Court accepted his examination-in-chief to the extent it aligned with other evidence, invoking the settled position that the testimony of a hostile witness is not to be discarded outright but may be relied upon where found credible.

21. In addition to these witnesses, the prosecution examined the PCR personnel—PW[1] HC Mange Ram, PW[2] Ct. Jaideep, and PW[3] Ct. Praveen—who stated that while patrolling in PCR Van Eagle-30, they were flagged down by Arvind (PW[9]) and informed that a man was being assaulted. On reaching the scene, they found the injured lying on the ground and the Appellant standing nearby. Upon inquiry, the Appellant allegedly admitted to having assaulted the injured with bricks. The injured was then taken to Fortis Hospital, where he was declared brought dead.

22. The post-mortem examination was conducted by PW26 Dr. Hari Prasad who opined that the cause of death was cranio-cerebral damage caused by blunt force trauma, consistent with repeated blows from heavy objects like bricks or stones. The injuries were stated to be ante-mortem.

23. The forensic evidence included the recovery of blood-stained bricks, stones, a slipper, hair strands, and soil samples, all seized vide various seizure memos (Ex. PW5/D to Ex. PW5/J). These items were sent to the FSL, and reports (Ex. PW16/A and others) confirmed the presence of human blood, though the source matching was not categorically established on all items. The CCTV footage, seized from a DVR at PW12 Laxman Singh‟s house, was presented via Ex. PW17/P[1] and played in court. However, the Trial Court observed that the faces of the individuals were not clearly visible due to the camera angle and lighting, limiting the footage’s evidentiary value to corroboration of the occurrence but not of identity.

24. Upon a cumulative appreciation, the court found that the eyewitness accounts of PW[4] and PW[9], reinforced by corroborative medical and forensic evidence, provide a consistent narrative implicating the Appellant. Although PW[8] retracted from his earlier version, his prior testimony is partly admissible under law and is corroborative in nature. The physical presence of the Appellant at the scene, his alleged admission before the PCR, and the sequence of events support the prosecution’s case. While the circumstantial evidence alone may not have been sufficient to establish guilt, it significantly strengthens the otherwise reliable direct evidence available in the form of eyewitness accounts.

25. Learned Counsel for the Appellant contends that the Trial Court committed a grave error in convicting the Appellant solely on the basis of uncorroborated and inconsistent testimony, while ignoring key procedural safeguards and the benefit of doubt arising from the overall evidentiary record.

26. It is submitted that the Trial Court failed to appreciate that the FIR is not based on any written complaint or initial statement by an eyewitness, but rather initiated upon DD entry made by PCR officials on being informed by PW[9] Arvind. There is no prior complaint or statement by an injured or eyewitness at the time of the lodging of FIR. This, it is argued, casts doubt on the spontaneity and reliability of the prosecution’s case.

27. He further contends that the case rests predominantly on the testimony of PW[4] and PW[9]. However, these witnesses, according to the defence, were either not present at the scene or had reasons to falsely implicate the Appellant. PW[4] was a known person to the Appellant and resided nearby; his testimony is argued to be motivated and lacking in independent corroboration. PW[9], on the other hand, did not mention the name of the accused when initially informing the PCR van, nor did he offer any explanation for the delay in identifying the accused.

28. It is also contended that PW[8] Rahul, who was presented as an independent eyewitness, completely retracted from his original testimony upon being recalled and cross-examined. He stated that he was not present at the spot, had not seen the incident, and was allegedly coerced by the police into making the earlier statement. Despite this, the Trial Court relied on selective portions of his testimony, in violation of established law which mandates caution when dealing with hostile witnesses.

29. It is argued that the so-called extra-judicial confession before the PCR officials—where the accused allegedly stated that he had hit the victim—is neither admissible in law nor corroborated by any independent witness. The confession was not recorded under Section 164 CrPC, nor were any recovery or disclosure proceedings duly followed thereafter.

30. It is furthermore stated that the CCTV footage produced by the prosecution has also been challenged as vague and lacking probative value. It neither clearly captures the face of the Appellant nor does it depict the sequence of assault with sufficient clarity. No scientific analysis was conducted to verify identity, and the DVR was seized from a private residence without ensuring an evidentiary chain of custody.

31. It is argued that all the recoveries shown by the prosecution— including the bricks, stones, blood-stained earth, and slippers—were allegedly made from an open public place. No independent public witness was joined at the time of seizure. The prosecution has not adequately explained why neutral witnesses were not available or examined, especially when the incident occurred in a public area.

32. On medical grounds, it is submitted that while the post-mortem confirms death due to blunt force trauma, it does not conclusively link the injuries with the exact manner or weapon attributed by the prosecution. The absence of fingerprints or blood on the hands or clothes of the Appellant also militates against his alleged involvement.

33. Lastly, he emphasizes on the prolonged incarceration since October 2014 and the absence of any criminal antecedents. The conviction, it is argued, results in a miscarriage of justice given the lack of a complete and unimpeachable chain of evidence. It is important to note that the Trial Court failed to apply the principle that in cases resting on circumstantial and partially hostile evidence, the benefit of doubt must go to the accused.

34. Per contra, the learned APP for the State has supported the judgment of conviction and sentence, contending that the impugned judgment is wellreasoned, based on credible evidence, and does not suffer from any illegality or perversity warranting interference by this Court in appellate jurisdiction.

35. It is submitted that the conviction of the Appellant is primarily based on the direct ocular testimony of PW[4] Akash and PW[9] Arvind Kumar Tripathi, both of whom witnessed the Appellant striking the deceased with a brick and a heavy stone in the early morning hours of 07.10.2014. Their testimonies, it is contended, are natural, consistent, and fully corroborated by the medical and forensic evidence on record.

36. The State further contends that the eyewitness account of PW[4] was credible and remained unshaken in cross-examination. PW[9], a night watchman, is an independent witness with no animus against the accused, and his deposition is consistent with the prosecution version. It is emphasized that the defence failed to elicit any material contradiction in their testimonies.

37. As regards PW[8] Rahul, it is submitted that the witness turned hostile during further cross-examination but had already deposed during examination-in-chief that he had seen the Appellant attacking the deceased. Relying on the decision in State of U.P. v. Ramesh Prasad Misra, it is argued that even the testimony of a hostile witness can be relied upon to the extent it supports the prosecution, particularly where it is corroborated by other evidence.

38. The APP asserts that the forensic evidence, including the bloodstained bricks and stones recovered from the crime scene, and the medical report showing multiple blunt force injuries, further corroborate the eyewitness account. The post-mortem report confirms that the injuries were sufficient to cause death in the ordinary course of nature.

39. On the issue of CCTV footage, he contends that the footage supports the prosecution timeline and shows movement consistent with the version of events. While the footage may not identify the accused with clarity, it corroborates the occurrence of a violent incident at the stated time and place.

40. The argument regarding absence of motive is downplayed by the prosecution, asserting that motive, though relevant, is not indispensable when there is clear and direct eyewitness evidence of the commission of the crime. It is pointed out that the accused was present at the spot, did not raise any alarm or call for help, and instead attempted to flee, indicating a guilty mind.

41. The APP also stresses on the fact that the Appellant's confession to the PCR officials, though not a judicial confession, forms part of the sequence of events showing his involvement and was immediately acted upon by law enforcement. The statement is admissible under Section 8 of the Indian Evidence Act as conduct of the accused post-offence.

42. Lastly, it is contended that the defence has not brought on record any plausible explanation for the presence of the accused at the scene, nor any alternative theory to rebut the prosecution’s case. The cumulative chain of evidence—eyewitnesses, forensic proof, medical opinion, and the absence of plausible defence—forms a complete narrative implicating the Appellant beyond reasonable doubt. The appeal, it is therefore submitted, is without merit and liable to be dismissed.

43. Heard the learned Counsels for the parties and perused the material on record.

44. In adjudicating the present appeal, it is imperative to draw a clear distinction between culpable homicide under Section 299 IPC and murder under Section 300 IPC, as the entire question of culpability hinges on whether the act alleged falls within the four corners of the latter. Section 299 defines culpable homicide as the act of causing death with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that the act is likely to cause death. Section 300, in contrast, carves out specific categories of culpable homicide that amount to murder by setting a higher threshold of intention and knowledge.

45. The Apex Court has clarified in State of Andhra Pradesh v. Rayavarapu Punnayya, (1976) 4 SCC 382, that "culpable homicide is the genus and murder its species", and that all murders are culpable homicides but not all culpable homicides are murders. The distinction depends upon the degree of probability of death, and the intention or knowledge with which the act is committed. The relevant portion of the said judgment reads as under:-

46. The Apex Court in State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382, has held that whenever the a court is confronted with the question whether the offence is ―murder‖ or ―culpable homicide not amounting to murder‖, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to ―culpable homicide‖ as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of ―murder‖ contained in Section

300. If the answer to this question is in the negative the offence would be ―culpable homicide not amounting to murder‖, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be ―culpable homicide not amounting to murder‖, punishable under the first part of Section 304, of the Penal Code.

47. Similarly, in Abdul Waheed Khan v. State of A.P., (2002) 7 SCC 175, the Apex Court has observed that in the scheme of IPC culpable homicide is the genus and ―murder‖, its specie. The Apex Court has held that all ―murder‖ is ―culpable homicide‖ but not vice versa. The Apex Court has further held that ―culpable homicide‖ without ―special characteristics of murder is culpable homicide not amounting to murder‖ and for the purpose 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:

difference between clause (b) of Section 299 and clause (3) of Section 300 is one of degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word “likely” in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words “bodily injury … sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature."

48. The Apex Court in Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444, has observed as under:

whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion;

(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."

49. Bringing out the distinction between clause (b) of Section 299 IPC and clause (3) of Section 300 IPC, the Apex Court in Raj Pal v. State of Haryana, (2006) 9 SCC 678, has held as under:

(2) [ Arising out of SLP (Crl.) No. 5228 of 2005. From the Final Judgment and Order dated 15-7-2005 of the High Court of Punjab and Haryana at Chandigarh in Crl. A. No. 177-SB/92]. Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) [ Arising out of SLP (Crl.) No. 5228 of 2005. From the Final Judgment and Order dated 15-7-2005 of the High Court of Punjab and Haryana at Chandigarh in Crl. A. No. 177-SB/92] is borne out by Illustration (b) appended to Section 300.

17. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) [ Arising out of SLP (Crl.) No. 5228 of 2005. From the Final Judgment and Order dated 15-7-2005 of the High Court of Punjab and Haryana at Chandigarh in Crl. A. No. 177-SB/92] of Section 300 can be where the assailant causes death by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) [Ed.: Secondly] of Section 300, instead of the words “likely to cause death” occurring in the corresponding clause (b) of Section 299, the words “sufficient in the ordinary course of nature” have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury 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."

50. In Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635, the Apex Court, while describing the factors which are to be taken into consideration while awarding the sentence to an accused, has observed as under:

(a) motive or previous enmity; (b) whether the incident had taken place on the spur of the moment;

(c) the intention/knowledge of the accused while inflicting the blow or injury;

(d) whether the death ensued instantaneously or the victim died after several days; (e) the gravity, dimension and nature of injury; (f) the age and general health condition of the accused; (g) whether the injury was caused without premeditation in a sudden fight; (h) the nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

(i) the criminal background and adverse history of the accused;

(j) whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) number of other criminal cases pending against the accused;

(l) incident occurred within the family members or close relations;

(m) the conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused."

51. Applying the said parameters to the facts of the present case wherein PW-8 & PW-9, who are two eye-witnesses, have stated that on the fateful night four boys, including the deceased and the Appellant herein, got down from the TSR. It is stated that all the four persons were under the influence of liquor. The eye-witnesses have stated that one of the four boys started beating the other boy. It is stated that the deceased was first hit with a smaller stone and then he was hit by a bigger stone which was lying there. The Trial Court has itself observed that the CCTV footage is quite blurred. Exhibit-19, which are the photographs, shows presence of two stones. The dimension of stones are not available. In view of the fact that there was a quarrel and all the four persons, including the deceased and the Appellant herein, came together from the TSR, it cannot be said that there was any intention to commit murder. The motive of murder has not been brought out very clearly. The incident seems to have happened in the spur of the moment in a quarrel. The death has been caused by a stone which was lying nearby.

52. There is no criminal background of the Appellant. In view of the law laid down by the Apex Court and the material on record, this Court is of the opinion that the material against the Appellant herein is not sufficient to bring him under Section 300 IPC punishable under Section 302 IPC. Accordingly, the conviction of the Appellant under Section 302 IPC is set aside. Instead, the Appellant is convicted under Section 304 Part-I IPC, which applies to acts done with the intention of causing such bodily injury as is likely to cause death.

53. As regards the sentence, the Appellant has been in custody since 07.10.2014, and has thus undergone more than eight years of incarceration.

54. Accordingly, the Appellant is sentenced to rigorous imprisonment for a period of 10 years and is directed to be released after completion of 10 years, if not required to be detained in any other case.

55. The appeal is partly allowed in the above terms. The impugned judgment of conviction and order on sentence dated 07.05.2024 and 27.07.2024 respectively passed by the learned ASJ are modified to the extent indicated hereinabove.

56. Let a copy of this judgment be transmitted to the concerned Jail Superintendent for compliance.

SUBRAMONIUM PRASAD, J HARISH VAIDYANATHAN SHANKAR, J JULY 16, 2025 JP/Rahul