2026:HHC:21224 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 216 of 2024 Reserved on: 01.04.2026 Decided on: 02.06.2026 Sudershan Kumar .…. Appellant Versus State of H.P. …. Respondent Coram The Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr Arush Matlotia, Advocate. For the Respondent : Mr Ajit Sharma, Additional Advocate General. Rakesh Kainthla, Judge The present appeal is directed against the judgment of conviction and order of sentence dated 27.03.2024 passed by learned Additional Sessions Judge, Dehra, District Kangra, H.P. (learned Trial Court), vide which the appellant (accused before the learned Trial Court) was convicted of the commission of offences punishable under Sections 323, 341, 504, 506 and 304 part II of the Indian Penal Code (IPC) and was sentenced as under: - 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes. 2 2026:HHC:21224 Sections Sentences 323 of IPC The accused was sentenced to undergo simple imprisonment for six months, pay a fine of ₹500/- and in default of payment of fine to further undergo simple imprisonment for two months. 341 of IPC The accused was sentenced to undergo simple imprisonment for one month, pay a fine of ₹500/- and, in default of payment of the fine, to further undergo simple imprisonment for ten days. 504 of IPC The accused was sentenced to undergo simple imprisonment for six months, pay a fine of ₹500/- and in default of payment of fine to further undergo simple imprisonment for two months. 506 of IPC The accused was sentenced to undergo simple imprisonment for six months, pay a fine of ₹500/- and in default of payment of fine to further undergo simple imprisonment for two months. 304 part II The accused was sentenced to undergo simple rigorous imprisonment for seven years, pay a fine of ₹50,000/- and in default of payment of fine to further undergo simple imprisonment for six months. It was ordered that all the substantive sentences of imprisonment shall run concurrently. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 3 2026:HHC:21224 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused for the commission of offences punishable under Sections 323, 341, 504, 506 and 302 read with Section 34 of the IPC. It was asserted that the informant, Shakti Chand (since deceased), was the joint owner of the land with his brother. The parties were residing separately as per the family arrangement. The informant was constructing a lavatory on the land allotted to him. Rajesh Kumar (PW-1), Ashwani Kumar, and Paramjit (PW-3) were carrying out the construction work. The informant was bringing the construction material. Informant’s brother Sudershan Kumar (present accused) and ‘K’, a juvenile in conflict with law, came to the spot and asked the informant to stop the construction work. The informant told Sudershan Kumar about the family arrangement. However, Sudershan Kumar persisted in his demand. The informant walked away from the spot and reached the construction site. The accused Sudershan Kumar started hurling filthy abuses at the informant and pushed him. The informant hit the lintel of the lavatory and sustained injury on his back. The juvenile, in conflict 4 2026:HHC:21224 with the law, picked up a brick and inflicted a blow on the informant’s head. The informant’s head started bleeding. Rajesh Kumar (PW-1) and Ashwani Kumar intervened. Accused Sudershan Kumar and the juvenile threatened to kill the informant and went away from the spot. The informant was taken to the hospital, and an intimation was given to the police. The police recorded entry (Ext.P- 1/PW-10) and sent HC Sarwan Kumar (PW-18), HHC Rajesh Kumar, and HASI Mohinder Singh to the hospital. HC Sarwan Kumar (PW-18) filed an application (Ext.P- 1/PW-11) for the medical examination of the injured. Dr Talvinder Singh (PW-11) medically examined the injured and found multiple injuries, which could have been caused by a blunt weapon. He issued an MLC (Ext.P-2/PW-11). He advised the x-ray and referred the patient to Civil Hospital Dadasiba for further treatment. The informant was taken to Civil Hospital, Kotla, where his X-ray was conducted. The informant made a statement (Ext.P-2/PW-10), which was sent to the Police Station, where F.I.R. (Ext.P-1/PW-16) was registered. HC Sarwan Kumar (PW- 18) went to the spot and prepared the site plan (Ext.P-1/PW-18). Rajesh Kumar (PW-1) and Paramjit 5 2026:HHC:21224 (PW-3) identified the brick (MO-2) as a weapon of offence. HC Sarwan Kumar (PW-18) put the brick in the cloth parcel (MO-1) after measuring it. He sealed the parcel with five impressions of seal ‘U’ and seized the parcel vide memo (Ext. P-1/PW-1). He obtained the sample seal (MO-3) on a separate piece of cloth. He also found the slippers of the injured (MO-6) lying on the spot. He put them in a cloth parcel (MO-15) and seized them vide memo (Ext.P-6/PW-3). He obtained the sample seal (Ext.P-7/PW-3) on a separate piece of cloth. HC Sarwan Kumar (PW-18) also found the blood lying on the spot. He lifted it with the soil and wrapped it in white coloured paper. He put the paper into a cloth parcel and sealed the parcel with five impressions of seal ‘U’. He obtained a sample seal (MO-7) on a separate piece of cloth. He seized the parcel vide memo (Ext.P-2/PW-1). He also picked up the blood stained controlled soil sample from the spot and wrapped it in a white paper. He put the white paper in a cloth parcel and sealed the parcel with five impressions of the seal ‘U’. He obtained the sample seal (MO-11) on a separate piece of cloth and seized the parcel vide memo (Ext.P-3/PW-1). Rajesh Kumar produced the blood- 6 2026:HHC:21224 stained shirt of the injured, which was put in a cloth parcel. The parcel was sealed with five impressions of seal ‘U’. A sample seal (MO-14) was taken on a separate piece of cloth. Rinku, Up Pardhan Khati, informed the police that Shakti Chand had succumbed to his injuries at the BBMB Hospital, Talwara. HC Sarwan Kumar (PW-18) and ASI Sajeev went to the BBMB, Hospital Talwara. An inquest on the dead body was conducted. An application (Ext.P-1/PW-13) was filed for conducting the post- mortem examination of the deceased Shakti Chand. Dr Savita (PW-13) and Dr Gurmeet Singh conducted the post- mortem examination of Shakti Chand. They found multiple injuries on the dead body of the deceased. As per their opinion, the cause of death was shock consequent to head injury, which was ante mortem in nature and sufficient to cause death in the ordinary course of nature. They issued a post-mortem report (Ext.P-2/PW-13) and final opinion (Ext.P-4/PW-13). They preserved the viscera and handed them over to the police official accompanying the dead body. SI/SHO Kuldeep Singh (PW-15) conducted further investigation. He handed over the juvenile, in conflict with the law, to his mother vide memo 7 2026:HHC:21224 (Ext.P-1/PW-7). He arrested the accused Sudershan Kumar, vide memo (Ext.P-1/PW-15). Accused Sudershan Kumar made a disclosure statement (Ext.P-5/PW-9) that he could get the place of occurrence identified. The accused led the police to the spot and identified it. Memo (Ext.P-1/PW-1) was prepared. He also identified the place where he had pushed the deceased, and the juvenile had inflicted the brick blow on the head of the deceased. Memo (Ext. P-4/PW-15) was prepared. The revenue record (Ext.P-9/PW-4 and Ext.P-10/PW-4) was issued, and Aks Tatima (Ext. P-8/PW-4) of the place of occurrence was prepared. The birth certificate (Ext.P-2/PW-6) of the juvenile, in conflict with law, was obtained from the Additional Registrar, Birth and Death, Kangra at Dharamshala, H.P. The Social investigation report (Ext.P- 6/PW-15) of the juvenile and a copy of the Pariwar Register (Ext.P-7/PW-15) were obtained. The articles were sent to the RFSL for analysis. The report (Ext.P-1/PW-19) was issued mentioning that human blood of group ‘O ’ was detected in the blood sample, the shirt of the deceased and the blood-stained soil. No blood was detected on the brick, the controlled sample soil and the slippers of the 8 2026:HHC:21224 deceased. Another report (Ext.P-3/PW-13) was issued by the RFSL, Dharamshala, mentioning that ‘Ethyl alcohol and drugs’ were not detected in the viscera. The statements of witnesses were recorded as per their version, and after completion of the investigation, the challan was prepared and presented before the learned Additional Chief Judicial Magistrate, Court No. I, Dehra, District Kangra, H.P., who committed it to the learned Sessions Judge, Kangra, at Dharamshala and the learned Sessions Judge assigned the matter to the learned Additional Sessions Judge-II, Kangra, at Dharamshala, District Kangra, H.P. (Learned Trial Court) for disposal as per law. 3. Learned Trial Court charged the accused with the commission of offences punishable under Sections 323, 302, 341, 504 and 506 read with Section 34 of the IPC, to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined twenty-three witnesses to prove its case. Rajesh Kumar (PW-1), Shivam (PW-2) and Paramjit (PW-3) are the eyewitnesses. Amit Sharma (PW-4) prepared the Aks Shajra. Mohidner Singh 9 2026:HHC:21224 (PW-5) witnessed the recovery. Shashank Sahi (PW-6) produced the record regarding the date of birth of the juvenile. Rajeshwar Singh (PW-7) and Raj Kumar (PW-8) proved that a compromise had taken place between the accused and the deceased. C. Inder Singh (PW-9) witnessed the disclosure statement made by the accused. HASI Mohinder Singh (PW-10) had accompanied Sarwan Kumar to the hospital and carried the informant’s statement to the police Station. Dr Talvinder Singh (PW- 11) conducted the initial examination of the injured. Constables Neeraj Kumar (PW-12) and Rajinder Singh (PW-16) proved the entries in the daily diary. Dr Savita (PW-13) conducted the autopsy. ASI Joginder Singh (PW- 14) was posted as MHC with whom the case property was deposited. Inspector Kuldeep Singh (PW-15) and ASI Sarwan Kumar (PW-18) investigated the matter. HC Vikas Kumar (PW-17) carried the case property to RFSL, Dharamshala, H.P. Dr Ajay Kumar Sehgal (PW-19) is the Forensic Expert who examined the samples in the laboratory. HC Ram Kumar (PW-20) received the report of analysis. Inspector Sandeep Pathania (PW-21) prepared the supplementary challan. ASI Joginder Singh (PW-22) 10 2026:HHC:21224 had received the result of the analysis. HASI Jasbir Singh (PW-23) brought the report of analysis and the samples. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution's case. He stated that his brother Shakti Chand and Rajesh were raising lavatories on his land. Pardhan Gram Panchayat had told them to give land to him at some other place. He was sleeping in his home and had not visited the spot. A false case was made against him. He claimed that he was innocent but did not produce any evidence in his defence. 6. The learned Trial Court held that the statements of the eyewitnesses corroborated each other. The incident had taken place during Covid Pandemic times, and the possibility of the presence of some independent person was remote. The initial statement made by the informant to the police would be admissible as a dying declaration. As per the opinion of the Medical Officer, the injuries noticed by them could have been caused by means of a brick. Both the accused shared the common intention because both of them came together, the accused pushed the deceased, and the juvenile 11 2026:HHC:21224 inflicted a blow by means of a brick. Both the accused had left together. The juvenile had only inflicted one injury, and the intention to cause death could not be inferred. The brick was not used to cause any other injury. Therefore, an offence punishable under Section 304 Part II of the IPC was made out, which is a minor offence as compared to Section 302 of the IPC. The prosecution had also established that simple hurt was caused to the deceased. The informant was prevented from moving further, and the accused had hurled filthy abuses at the informant and intimidated him. All the ingredients of the commission of offences punishable under Section 341, 323, 304 Part II, 504 and 506 read with Section 34 of IPC were satisfied. Hence, the learned Trial Court convicted and sentenced the accused as mentioned above. 7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused has filed the present appeal, asserting that the prosecution has examined the interested witnesses. The injuries could have been caused by a fall, and the accused had no role in the commission of the crime. Learned Trial Court had not properly appreciated the material on record. Hence, it was 12 2026:HHC:21224 prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 8. I have heard Mr Arush Matlotia, learned counsel for the appellant/accused, and Mr Jitender K Sharma, learned Additional Advocate General for the respondent/State. 9. Mr Arush Matlotia, learned counsel for the appellant/accused, submitted that the learned Trial Court erred in convicting and sentencing the accused. It is an admitted version that there was a dispute over the land. Therefore, the possibility of false implication cannot be ruled out. The accused had only pushed the deceased as per the prosecution's case, and he cannot be held liable for the commission of an offence punishable under Section 304, Part II of the IPC. Learned Trial Court had imposed an excessive sentence. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 10. Mr Jitender K. Sharma, learned Additional Advocate General for the respondent/State, submitted that 13 2026:HHC:21224 the prosecution witnesses corroborated each other's statements. The Medical evidence also proved that the deceased had sustained injury to the head, which could have been caused by means of the brick recovered by the police. This corroborated the ocular version. The trial court had already taken a lenient view by converting the offence from 302 to 304, Part II of the IPC and no further leniency is required in the present case. Hence, he prayed that the appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. ASI Sarwan Kumar (PW-18) stated that he went to the hospital and recorded the informant’s statement (Ext. P-2/PW-10). He read over and explained the statement to Shakti Chand. It was suggested to ASI Sarwan Kumar (PW-18) that the statement was recorded at the instance of Rajesh Kumar, and Shakti Chand had signed the same. He denied this suggestion. A denied suggestion does not amount to any proof and cannot be used to doubt his testimony. 14 2026:HHC:21224 13. The statement of ASI Sarwan Kumar (PW-18) was corroborated by HASI Mohinder Singh (PW-10), who stated that Shakti Chand got his statement recorded under Section 154 of Cr.P.C. (Ext. P-2/PW-10) before ASI Sarwan Kumar. ASI Sarwan Kumar (PW-18) made the endorsement on the statement and sent it to the police station for the registration of the F.I.R. His testimony that the statement of Shakti Chand was recorded in his presence was not disputed in the cross-examination, and only the fact that he had carried the rukka to the Police Station was challenged. 14. Therefore, it was duly proved on record that ASI Sarawan Kumar (PW-18) had recorded the statement of injured Shakti Chand (Ext.P-2/PW-10) as per his version. The learned Trial Court had rightly held that the statement made by informant Shakti Chand would be admissible as a dying declaration. It was laid down by the Hon’ble Supreme Court in Dayaram v. State of M.P., (2020) 13 SCC 382, that a report made by a person related to the circumstances of his death to the police and registered as F.I.R. is admissible as a dying declaration. It was observed: - 15 2026:HHC:21224 10.9. As per Section 32(1) of the Evidence Act, the FIR should be treated as a dying declaration. This Court in Dharam Pal v. State of U.P. [Dharam Pal v. State of U.P., (2008) 17 SCC 337: (2010) 4 SCC (Cri) 534] held that: (SCC p. 345, paras 17-18 & 20) “17. … the report dictated by the deceased fully satisfied all the ingredients for being made admissible as a dying declaration. To ascertain this aspect, we may refer to some of the general propositions relating to a dying declaration. Section 32(1) of the Evidence Act deals with dying declarations and lays down that when a statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, such a statement is relevant in every case or proceeding in which the cause of the person's death comes into question. Further, such statements are relevant whether the person who made them was or was not at the time when they were made under the expectation of death and whatever may be the nature of the proceedings in which the cause of his death comes into question. 18. The principle on which a dying declaration is admissible in evidence is indicated in the maxim “nemo moriturus praesumitur mentire”, which means that a man will not meet his maker with a lie in his mouth. Thus, it is clear that a dying declaration may be relating to— (a) as to the cause of death of the deceased; (b) as to “any of the circumstances of the transaction” which resulted in the death of the deceased. *** 20. If we look at the report dictated by the deceased in the light of the aforesaid propositions, it emerges that the names of the accused and the important features of the case have been clearly mentioned in the report. It contains a 16 2026:HHC:21224 narrative by the deceased as to the cause of his death, which finds complete corroboration from the testimony of eyewitnesses and the medical evidence on record.” (emphasis supplied) 15. Thus, the learned Trial Court had rightly relied upon the statement of the injured Shakti Chand as a dying declaration. 16. It was submitted that the statement was recorded at 5:30 p.m. on 14.08.2021, and the death had taken place on 14.08.2021 before 6:53 p.m. because the police were informed by BBMB Talwara on 14.08.2021 at 6:53 p.m. as per the post-mortem report. Therefore, the injured had succumbed to his injuries within one hour of examination, and there is no evidence of the mental capacity of the deceased. This submission cannot be accepted. Dr Talvinder Singh (PW-11) examined the injured on 14.08.2021, at 2:00 p.m. and found that the patient was conscious, cooperative and well-oriented to time, place and person. No question was asked from him in the cross-examination that the injured was not fit to make the statement. It was held by the Hon’ble Supreme Court in Sk. Nagoor v. State of A.P., (2008) 15 SCC 471, where no suggestion was given to the person writing the dying 17 2026:HHC:21224 declaration or the doctor that the deceased was not fit to make a dying declaration, the dying declaration cannot be doubted; therefore, the submission that the injured was not fit to make the statement cannot be accepted. 17. It was submitted that the deceased was not under any apprehension of death when he had made the statement, and the dying declaration is admissible. This submission is not acceptable. In Pakala Narayana Swami v. King-Emperor (1938-39) 66 IA 66 = 1939 SCC OnLine PC 1, the deceased made a statement that he was going to Behrampur as the wife of the accused had written a letter to him asking him to receive payment. It was contended that the statement is not admissible as the deceased was not under any apprehension of death when he had made the statement. Repelling this contention, the judicial committee of the Privy Council observed: - “A variety of questions have been mooted in the Indian Courts as to the effect of this section. It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, and that the “circumstances” can only include the acts done when and where the death was caused. Their Lordships are of the opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made 18 2026:HHC:21224 before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction; general expressions indicating fear or suspicion, whether of a particular individual or otherwise and not directly related to the occasion of the death, will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. “Circumstances of the transaction” is a phrase that no doubt conveys some limitations. It is not as broad as the analogous use in “circumstantial evidence”, which includes evidence of all relevant facts. It is, on the other hand, narrower than “res gestæ.” Circumstances must have some proximate relation to the actual occurrence, though, for instance, in a case of prolonged poisoning, they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that “the circumstances” are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that “the cause of [the declarant's] death comes into question.” In the present case, the cause of the deceased's death comes into question. The transaction is one in which the deceased was murdered on 21st March or 22nd March, and his body was found in a trunk proved to have been bought on behalf of the accused. The statement made by the deceased on 20th or 21st March that 19 2026:HHC:21224 he was setting out to the place where the accused lived and to meet a person, the wife of the accused, who lived in the accused's house, appears clearly to be a statement as to some of the circumstances of the transaction which resulted in his death. The statement was rightly admitted.” 18. This position was reiterated in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, wherein it was observed: “18. Before closing this chapter, we might state that the Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English law, where only the statements which directly relate to the cause of death are admissible. The second part of clause (1) of Section 32, viz., “the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question”, is not to be found in the English Law. This distinction has been clearly pointed out in the case of Rajindra Kumar v. State [AIR 1960 Punj 310: 1960 Cri LJ 851], where the following observations were made: “clause (1) of Section 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead,... are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question... It is well settled by now that there is a difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under the expectation of death. 20 2026:HHC:21224 In English Law, the declaration should have been made under the sense of impending death, whereas under Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death.” 19. And in the case of State v. Kanchan Singh [AIR 1954 All 153: 1953 All LJ 615: 1954 Cri LJ 264] it was observed thus: “The law in India does not make the admissibility of a dying declaration dependent upon the person's having a consciousness of the approach of death. Even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death would be admissible under Section 32, Evidence Act.” 20. In these circumstances, therefore, it is futile to refer to English cases on the subject. 21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge: (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. The distance of time would depend on or vary with 21 2026:HHC:21224 the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased, who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months, the statement may be admissible under Section 32. (3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the 22 2026:HHC:21224 said statement would clearly fall within the four corners of Section 32 and, therefore, be admissible. The distance of time alone in such cases would not make the statement irrelevant. 19. Therefore, it is not essential that the deceased should have been under the apprehension of death at the time of making the statement, and it is sufficient that the statement pertained to the circumstances related to the death. 20. In the present case, the informant had described in the statement (Ext.P-2/PW-10) that the accused had abused, pushed and hurt him with a brick. The cause of death, according to the post-mortem examination, was ante mortem injuries, and as per Dr Savita (PW-13), the injury could have been caused by means of a brick shown to her. Therefore, statement (Ext.P-2/PW-10) relates to the circumstances related to the death and is admissible even if the deceased was not under apprehension of death. 21. The law relating to dying declaration was considered by the Hon’ble Supreme Court in Ifran vs State of UP 2023 SCC OnLine SC1016, and it was observed: 23 2026:HHC:21224 “48. The justification for the sanctity/presumption attached to a dying declaration is two-fold: (i) ethically and religiously, it is presumed that a person, while at the brink of death, will not lie, whereas (ii) from a public policy perspective, it is to tackle a situation where the only witness to the crime is not available. 49. One of the earliest judicial pronouncements where the rule as above can be traced is the King's Bench decision of the King v. William Woodcock, (1789) 1 Leach 500: 168 ER 352, where a dying woman blamed her husband for her mortal injuries, wherein Judge Eyre held this declaration to be admissible by observing:— “…the general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone: when every motive to falsehood is silent, and the mind is induced by the most powerful consideration to speak the truth; a situation so solemn, and so awful, is considered by the law as creating obligation equal to that which is imposed by a positive oath administered in a Court of Justice. (b) But a difficulty also arises with respect to these declarations, for it has not appeared, and it seems impossible to find out whether the deceased herself apprehended that she was in such a state of morality as would inevitably oblige her soon to answer before her Maker for the truth or falsehood of her assertions. …. Declarations so made are certainly entitled to credit; they ought, therefore, to be received in evidence, but the degree of credit to which they are entitled must always be a matter for the sober consideration of the Jury, under all the circumstances of the case.” (Emphasis supplied) 24 2026:HHC:21224 50. Interestingly, the last observation of Judge Eyre showcases, even at the inception of this principle, that the Courts were wary of the inherent weakness of dying declarations and cautioned that great care be adopted. 51. It is significant to note the observations made by Taylor that “Though these declarations, when deliberately made under a solemn sense of impending death, and concerning circumstances wherein the deceased is not likely to be mistaken, are entitled to great weight, if precisely identified, it should always be recollected that the accused has not the power of cross-examination, a power quite as essential to the eliciting of the truth as the obligation of an oath can be, and that, where a witness has not a deep sense of accountability to his Maker, feelings of anger or revenge, or, in the case of mutual conflict, the natural desire of screening his own misconduct, may affect the accuracy of his statements and give a false colouring to the whole transaction. …“. [See: Taylor on “Treatise on the Law of Evidence”, 1931, 12th Edition Pg. 462] 52. It is observed in Corpus Juris Secundum Vol XL, Page 1283 that: “In weighing dying declarations, the jury may consider the circumstances under which they were made, as whether they were due to outside influence or were made in a spirit of revenge, or when declarant was unable or unwilling to state the facts, the inconsistent or contradictory character of the declarations, and the fact that deceased has not appeared and accused has been deprived of the opportunity to cross-examine him and may give to them the credit and weight to which they believe, under all the circumstances, they are fairly and reasonably entitled.” 25 2026:HHC:21224 53. In India, in the relevant provision of Section 32 of the Act, 1872, the first exception to the rule against admissibility of hearsay evidence is as under: “32(1). When it relates to the cause of death.— When the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” 54. Jon R. Waltz, American Jurist, observed that “It has been thought, rightly or wrongly, that Dying Declarations have intrinsic assurances of trustworthiness, making cross-examination unnecessary. The notion is that a person who is in the process of dying and knows it will be truthful immediately before departing to meet his Maker. (Of course, the validity of these hearsay exceptions is open to some debate. What about the person who is not deeply religious? What of the person who, as his last act, seeks revenge by falsely naming a lifelong enemy as his killer? How reliable is the perception and memory of a person who is dying? [See Waltz, J.R. (1975) Criminal Evidence, Chicago: Nelson-Hall. pp.75-76] 55. The Privy Council in Neville Nembhard v. The Queen, [1982] 1 All ER 183, on Section 32(1) of the Act, 1872, opined that the evidence of dying declaration under the Indian law lacks the special quality as in Common Law and hence, the weight to be attached to a dying declaration admitted under Section 32 of the Act, 1872 would necessarily be less than that attached to a dying declaration admitted under the common law rules. 26 2026:HHC:21224 56. The below-cited observations from the decision of Nembhard (supra) are of significant importance: “final observation should be made concerning the cases already mentioned that have been decided in the Court of Appeal for Eastern Africa. It appears that a rule of practice has been developed that when a dying declaration has been the only evidence implicating an accused person a conviction usually cannot be allowed to stand where there had been a failure to give a warning on the necessity for corroboration: see for example Pius Jasunga s/o Akumu v. The Queen (1954) 21 E.A.C.A. 331 and Terikabi v. Uganda [1975] E.A. 60. But it is important to notice that in the countries concerned, the admissibility of a dying declaration does not depend upon the common law test: upon the deceased having at the time a settled hopeless expectation of impending death. Instead, there is a very different statutory provision contained in section 32 (1) of the Indian Evidence Act 1872. That section provides that statements of relevant facts made by a person who is dead are themselves relevant facts: “When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” (emphasis added). In Pius Jasunga s/o Akumu v. The Queen, it was pointed out (for the reason associated with 27 2026:HHC:21224 the italicised words in the subsection) that the weight to be attached to a dying declaration admitted by reference to section 32 of the Indian Evidence Act, 1872, would necessarily be less than that attached to a dying declaration admitted under the common law rules. The first kind of statement would lack that special quality that is thought to surround a declaration made by a dying man who was conscious of his condition and who had given up all hope of survival. Accordingly, it may not seem surprising that the courts dealing with such statements have felt the need to exercise even more caution in the use to be made of them than is the case where the common law test is applied.” 57. This Court in Muthu Kutty v. State by Inspector of Police, T.N., (2005) 9 SCC 113, while discussing the decision in Woodcock (supra) referred to above, had cautioned the courts to ensure that a dying declaration is reliable before relying on it, with the following observations: - “13. … The general principle on which this species of evidence is admitted is that they are declarations made in extremity when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. These aspects have been eloquently stated by Eyre, L.C.B. in R. v. Woodcock (1789) 1 Leah 500: 168 ER 352). Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis, explain: 28 2026:HHC:21224 “Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure ‘gainst the fire? What the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false since it is true That I must die here and live hence by truth?” (See King John, Act V, Scene IV) The principle on which a dying declaration is admitted in evidence is indicated in the legal maxim “nemo moriturus praesumitur mentire — a man will not meet his Maker with a lie in his mouth”. 14. … The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross- examination are dispensed with. Besides, should the dying declaration be excluded, it will result in a miscarriage of justice because the victim is generally the only eyewitness in a serious crime, and the exclusion of the statement would leave the court without a scrap of evidence. 15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth, as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to 29 2026:HHC:21224 inspire the full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not a result of either tutoring or prompting, or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. …” (Emphasis supplied) 58. This Court in Nallapati Sivaiah v. Sub- Divisional Officer, Guntur, Andhra Pradesh, (2007) 15 SCC 465 and Bhajju alias Karan Singh v. State of Madhya Pradesh, (2012) 4 SCC 327 had explained the meaning and principles of dying declarations upon which its admissibility is founded, with the following observations: — “20. There is a historical and literary basis for the recognition of the dying declaration as an exception to the hearsay rule. Some authorities suggest the rule is of Shakespearean origin. In The Life and Death of King John, Shakespeare had made Lord Melun utter, “Have I met hideous death within my view, retaining but a quantity of life, which bleeds away, … lose the use of all deceit” and asked, “Why should I then be false, since it is true that I must die here and live hence by truth?” William Shakespeare, The Life and Death of King John, Act 5, Scene 4, lines 22-29. Xxx xxx xxx 30 2026:HHC:21224 22. It is equally well settled and needs no restatement at our hands that a dying declaration can form the sole basis for conviction. But at the same time, due care and caution must be exercised in considering the weight to be given to a dying declaration inasmuch as there could be any number of circumstances which may affect the truth. This Court, in more than one decision, has cautioned that the courts must always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion. 23. It is not difficult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity, and a person giving the dying declaration will be the last to give untruth as he stands before his creator. 24. There is a legal maxim “nemo moriturus praesumitur mentire”, meaning that a man will not meet his Maker with a lie in his mouth. Woodroffe and Amir Ali, in their Treatise on Evidence Act, state: “When a man is dying, the grave position in which he is placed is held by law to be a sufficient ground for his veracity, and therefore the tests of oath 31 2026:HHC:21224 and cross-examination are dispensed with”. 25. The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to the court, which, on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures.” (Emphasis supplied) 59. This Court in Bhajju (supra) has observed as under: “23. The “dying declaration” essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to file a false suit is silenced in the mind, and the person deposing is induced by the most powerful considerations to speak the truth. Xxx xxx xxx 26. The law is well settled that a dying declaration is admissible in evidence, and the admissibility is founded on the principle of necessity. …” 60. Since time immemorial, despite a general consensus of presuming that the dying declaration is true, they have not been stricto- sensu accepted rather, the general course of action has been that the judge decides whether 32 2026:HHC:21224 the essentials of a dying declaration are met and if it can be admissible, once done, it is upon the duty of the court to see the extent to which the dying declaration is entitled to credit. 61. In India, too, a similar pattern is followed, where the Courts are first required to satisfy themselves that the dying declaration in question is reliable and truthful before placing any reliance upon it. Thus, a dying declaration, while carrying a presumption of being true, must be wholly reliable and inspire confidence. Where there is any suspicion over the veracity of the same or the evidence on record shows that the dying declaration is not true, it will only be considered as a piece of evidence, but cannot be the basis for conviction alone. 62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same. However, they will only affect the weight of the dying declaration and not its admissibility:— (i) Whether the person making the statement was in expectation of death? (ii) Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity” (iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person? (iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of the police or any interested party? 33 2026:HHC:21224 (v) Whether the statement was not recorded properly? (vi) Whether the dying declarant had an opportunity to clearly observe the incident? (vii) Whether the dying declaration has been consistent throughout? (viii) Whether the dying declaration in itself is a manifestation/fiction of the dying person's imagination of what he thinks transpired? (ix) Whether the dying declaration was itself voluntary? (x) In the case of multiple dying declarations, whether the first one inspires truth and is consistent with the other dying declarations? (xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration. 63. It is the duty of the prosecution to establish the charge against the accused beyond a reasonable doubt. The benefit of the doubt must always go in favour of the accused. It is true that a dying declaration is a substantive piece of evidence to be relied on, provided it is proved that the same was voluntary and truthful, and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable, as the accused is named in the dying declaration as the assailant. 64. It is unsafe to record the conviction on the basis of a dying declaration alone in cases where suspicion, like the case on hand, is raised as regards the correctness of the dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be 34 2026:HHC:21224 properly weighed in each case to arrive at an appropriate conclusion. The reason why we say so is that in the case on hand, although the appellant-convict has been named in the two dying declarations as a person who set the room on fire, yet the surrounding circumstances render such a statement of the declarants very doubtful. 65. In Sujit Biswas v. State of Assam (2013) 12 SCC 406, this Court, while examining the distinction between “proof beyond a reasonable doubt” and “suspicion” in para 13, has held as under: “13. Suspicion, however, grave it may be, cannot take the place of proof, and there is a large difference between something that “maybe” proved and something that “will be proved”. In a criminal trial, suspicion, no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “maybe” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicions do not take the place of legal proof. The large distance between “maybe” true and “must be” true must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “maybe” true and “must be” true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided, 35 2026:HHC:21224 and if the facts and circumstances of a case so demand, then the benefit of the doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or merely probable doubt, but a fair doubt that is based upon reason and common sense.” 66. It may be true, as said by this Court, speaking through Justice Krishna Iyer in Dharm Das Wadhwani v. State of Uttar Pradesh (1974) 4 SCC 267, that the rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of the legitimate inferences flowing from the evidence, circumstantial or direct. Even applying this principle, we have a doubt as regards the complicity of the appellant-convict in the crime.” 22. Therefore, the statement made by a person related to the circumstances surrounding his death is admissible as a dying declaration and can form the sole basis for conviction if found to be truthful. 23. In the present case, the dying declaration is corroborated by other evidence on record. Rajesh Kumar (PW-1) stated that the injured Shakti Chand and the accused Sudershan Kumar are his brothers. Shakti Chand had started construction work of lavatory-cum-bathroom near his house on 14.08.2021. A compromise had taken place between the informant and the accused regarding the land where construction work was going on. Mason 36 2026:HHC:21224 Paramjit (PW-3) and labourer Ashwani Kumar were carrying out the construction. Accused Sudershan Kumar and his son, a juvenile, came to the spot. They abused the informant and told him to stop the construction work; otherwise, he would have to face the dire consequences. They picked up a quarrel with the informant. The accused pushed the informant, and the informant hit the corner of the septic tank. Juvenile picked up a brick and inflicted a blow on the informant’s head. The incident was witnessed by him, Paramjit (PW-3), Ashwani Kumar and Shivam (PW-2). The accused ran away from the spot. He and Shakti Chand went to Sansarpur Terrace Hospital. He stated in his cross-examination that he was the owner of an auto and used to ply the auto between Talwara and Sansarpur Terrace. He used to leave his house at 7 a.m. and return by noon. His Auto was permanently hired by the teachers of the primary School, Nari. He used to drop them at Nari at 8 a.m. and bring them back to Talwara at 3:00 p.m. He admitted that he used to carry the passengers to their destination. 24. It was submitted that the cross-examination of this witness makes his presence on the spot doubtful. 37 2026:HHC:21224 He used to leave the house in the morning and return in the afternoon. He had no reason to be present in the home at the time of the incident and learned Trial Court erred in relying upon his testimony. He also admitted in his cross- examination that Sudershan Kumar and his wife are working in a Pharma Company at Sansarpur Terrace, and they used to leave for the office in the morning and return in the evening. It was submitted that this part of his statement makes the prosecution's case suspect because the accused also had no reason to be present at the home. This submission is not acceptable. Shivam (PW-2) admitted in his cross-examination that the lockdown restrictions were imposed because of Covid 19. The accused, his wife, and Rajesh Kumar (PW-1) would have to follow the restrictions imposed by the lockdown and remain at home. Hence, their presence on the spot cannot be doubted. 25. Learned Trial Court had rightly pointed out that Rajesh Kumar (PW-1) is related to the victim and the accused and has no reason to support either. Nothing was suggested in his cross-examination that he had any enmity with the accused. His name was mentioned in the 38 2026:HHC:21224 F.I.R., which was lodged on the same day of the incident, and his presence on the spot cannot be doubted. 26. His testimony is corroborated by Paramjit (PW-3), who stated that he, informant, Shakti Chand, Rajesh Kumar (PW-1) and Ashwani Kumar, were constructing the walls above the septic tank slab. Accused Sudershan Kumar and the juvenile came to the construction site. Accused Sudershan Kumar asked the workers to stop the construction work. The informant requested that construction work be allowed to be completed, but the accused got enraged and pushed Shakti Chand, who fell on the septic tank and hit the edges. Juvenile picked up a brick and inflicted a blow on Shakti Chand’s head. Blood came out of the injury, and Shakti Chand was rushed to the hospital. He identified the brick. He stated in his cross-examination that he was working on the construction of a lavatory and bathroom. He had not maintained a record of the work being carried out. He denied that Shakti Chand suffered from epilepsy or had a seizure on the date of the incident. 39 2026:HHC:21224 27. The suggestion made to this witness that the informant suffered from epilepsy is not supported by any evidence. The accused has also not stated that the informant suffered from epilepsy and had a seizure on the date of the incident. A denied suggestion does not amount to any proof and cannot be used to discard the testimony of this witness. 28. Shivam (PW-2) stated that the accused is his uncle. He, his father Shakti Chand, and Rajesh Kumar were carrying out the construction of lavatory-cum-bathroom. Paramjit (PW-3) and Ashwani Kumar were working on the spot and asked the informant to stop the construction work. The informant told the accused that he had started the work as per the compromise. The informant refused to stop the work, and the accused started quarrelling with the informant. The accused Sudershan Kumar pushed the informant, and the informant hit the corner of the tank. Juvenile picked up a brick and inflicted a blow on the informant’s head. The accused left the spot. He stated in his cross-examination that the informant and the accused were in separate possession of the land. He admitted that a passage exists adjacent to his house, and vehicles ply on 40 2026:HHC:21224 it. The informant was working with the labourers at the time of the incident. No one in the family was suffering from epilepsy or any other seizure. He admitted that the classes were being held in online mode. He volunteered to say that he had completed the 12th class. 29. It was submitted that his name was not mentioned in the F.I.R. and his presence on the spot was doubtful. Learned Trial Court had rightly noticed that even if his testimony is excluded, it is not going to affect the prosecution's case adversely. Even otherwise, his name was mentioned by Rajesh Kumar (PW-1), who was present on the spot as per the F.I.R., and there is no reason to disbelieve the testimony of Shivam (PW-2). He was the son of the informant and would have assisted him in the construction of the lavatory-cum-bathroom, and his presence on the spot cannot be doubted. 30. Rajeshwar Singh (PW-7) was the Pardhan of Gram Panchayat Ghati. He stated that he and other members of the Panchayat went to the spot on 11.06.2021, where Shakti Chand was constructing lavatory –cum- bathroom. The accused and the informant entered into a 41 2026:HHC:21224 compromise that the land situated near the house of Sudershan Kumar would be used by him, and the land situated near the house of informant Shakti Chand would be used by him. This compromise was reduced to writing. He stated in his cross-examination that the police had not taken a copy of the compromise into possession. He was not asked any other question, which means that his testimony regarding the terms of the compromise has gone un-rebutted and has to be accepted as correct. This testimony corroborates the statement of Rajesh Kumar (PW-1) and Paramjit (PW-3) that the matter was settled, and still the accused was raising objections to the construction of the lavatory-cum-bathroom. 31. Raj Kumar (PW-8) was the Up-Pardhan of Gram Panchayat Ghati. He stated that Pardhan Gram Panchayat and other members visited the spot where the informant was constructing lavatory-cum-bathroom. A compromise was effected between the parties, and it was agreed that the land near the house of Shakti Chand would be used by him, and the land near the house of Sudershan Chand would be used by him. The land where lavatory- cum-bathroom was being constructed was to be used by 42 2026:HHC:21224 the informant. He stated in his cross-examination that the police had not taken into possession the copy of the compromise from him. He was not asked any question regarding the compromise, which means that the accused has not disputed the compromise between the parties. 32. It was submitted that the written compromise was not produced before the Court, and the learned trial Court erred in relying upon the oral statements. This submission cannot be accepted. It has already been stated that the statements of the witnesses Rajeswar Singh (PW- 7) and Raj Kumar (PW-8) regarding the compromise were not challenged in cross-examination and are to be accepted as correct. The compromise does not fall within the purview of Section 91 of the Indian Evidence Act, and oral evidence of its terms is admissible. Hence, the written compromise would not have been material in the present case. 33. The statements of these witnesses corroborate the statements of prosecution witnesses that a compromise was effected between the parties, and the informant was carrying out the construction as per the 43 2026:HHC:21224 compromise. The accused had objected to the raising of the construction; the informant had referred to the compromise and pleaded with the accused to allow him to complete the construction. However, the accused Sudershan pushed the informant, and the juvenile inflicted a brick blow on the informant’s head. 34. Dr Talvinder Singh (PW-11) conducted the medical examination of the informant on 14.08.2021 and found a lacerated wound on the parietal region of the right side of the head, two abrasions on the inner side of the right foot and tenderness on the right side of the back parallel to the chest. He specifically denied that the injuries could be caused by a fall on a hard surface. He admitted that the injuries can be caused by a fall from a height. This admission will not make the prosecution's case suspect because the witnesses specifically stated that the accused Sudershan had pushed the informant, due to which he fell into the septic tank. Thus, the medical evidence corroborates the statements of the eyewitnesses. 35. Dr Savita (PW-13) and Dr Gurmeet conducted the post-mortem of the deceased. They found multiple 44 2026:HHC:21224 ante-mortem injuries and a subdural bleed on the left side. The injuries on the parietal region of the scalp and the injury on the left side of the forehead could have been caused by means of a brick. The other injuries could also have been caused by pushing a person against the hard surface. She admitted in her cross-examination that injuries are possible from a fall from a considerable height or a slip from the staircase. She admitted that the blow with the blunt side of the brick could result in a fracture to the skull. There was no external damage to the skull, but the internal part of the skull was fractured, and there was a contusion on the outer part of the skull. 36. The statement of this witness corroborates the prosecution's version that injuries could have been caused by means of a brick. The statement made by her in the cross-examination that the blunt side of the brick would cause a fracture is merely an opinion and does not make the prosecution's case doubtful. Further, it is not known which side of the brick caused the injury, and it was also not possible to notice this fact when the brick was used as a weapon. She had categorically stated in her examination- in-chief that the injury on the head noticed 45 2026:HHC:21224 by her could have been caused by means of a brick, which corroborates the version of Rajesh Kumar (PW-1) and Paramjit (PW-3) that the juvenile had inflicted a brick blow on the informant’s head. 37. It was submitted that, as per the prosecution, a heap of bricks was lying on the spot and the brick produced before the Court has not been connected to the commission of the crime. This submission will not help the accused. The witnesses identified the brick in the Court. Dr Savita opined that the brick shown to her could have been used to cause the injury. Therefore, it is difficult to conclude that the police had not picked up the right brick from the spot. 38. The police arrested the accused Sudershan Kumar, and he identified the place of the incident. This evidence will not help the prosecution because the police had visited the spot of the incident on 14.08.2021 and prepared the site plan (Ext.P-1/PW-18). The police had marked the places from where the brick was picked up, the informant was restrained and abused and the place where he was thrown. Thus, the police were aware of all these 46 2026:HHC:21224 places. It was laid down by this Court in State of Himachal Pradesh versus Sanjiv Kumar Alias Sanju 2019 (3) ShimLC 1710, that there cannot be any rediscovery of a fact. When the place was known to the police, the disclosure made by the accused regarding a place without any recovery would be inadmissible under Section 27 of the Indian Evidence Act. It was observed: - “(j) Disclosure statement of accused Sanjay Kumar alias Sanjjan regarding the place from where the dead body was thrown: The prosecution examined Constable Narpat Ram (PW-16 in ST No.3/95) to prove the disclosure statement (Ext. PM) of accused Sanjay Kumar alias Sanjjan in ST No. 3/1995. However, the accused Sanjay Kumar is dead; therefore, this evidence is also not going to arrive at any conclusion. Even otherwise, his testimony is also cryptic and leads to no conclusion because it points out to the place from where the accused had thrown the dead body. Whereas the police had already recovered the dead body from that place. Therefore, in the absence of recovery, such a confession does not fall within the exception of Section 27 of the Indian Evidence Act, 1872. (k) In Aher Raja Khima v State of Saurashtra, AIR 1956 SC 217, a three-member bench of the Supreme Court holds, 20. Then we come to the recoveries. The false beard and mask were found buried in the grounds of Dewayat's house, and the appellant is said to have recovered them in the presence of panchas. But those discoveries are inadmissible in evidence because the police already knew where they 47 2026:HHC:21224 were hidden... (l) In Thimma v. State of Mysore, 1970 2 SCC 105, a three-member bench of the Supreme Court holds, 10. Reliance on behalf of the prosecution was also placed on the information given by the appellant, which led to the discovery of the dead body and other articles found at the spot. It was contended that the information received from him related distinctly to the facts discovered and, therefore, the statement conveying the information was admissible in evidence under Section 27 of the Evidence Act. This information, it was argued, also lends support to the appellant's guilt. It appears to us that when P. W. 4 was suspected of complicity in this offence, he would in all probability have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found. Once a fact is discovered from other sources, there can be no fresh discovery, even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Evidence Act is not whittled down by the mere manipulation of the record of the case diary. It would, in the circumstances, be somewhat unsafe to rely on this information for proving the appellant's guilt. We are accordingly disinclined to take into consideration this statement. (Emphasis supplied) 39. It was laid down by the Hon’ble Supreme Court in Thimma and Thimma Raju v. State of Mysore, (1970) 2 SCC 105: 1970 SCC (Cri) 320 that where the police had 48 2026:HHC:21224 discovered some fact from other sources, it cannot be re- discovered at the instance of the accused. It was observed on page 112: “10. Reliance on behalf of the prosecution was also placed on the information given by the appellant, which led to the discovery of the dead body and other articles found at the spot. It was contended that the information received from him related distinctly to the facts discovered and, therefore, the statement conveying the information was admissible in evidence under Section 27 of the Indian Evidence Act. This information, it was argued, also lends support to the appellant's guilt. It appears to us that when PW 4 was suspected of complicity in this offence, he would, in all probability, have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found. Once a fact is discovered from other sources, there can be no fresh discovery even if relevant information is extracted from the accused, and courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by mere manipulation of the record of the case diary. It would, in the circumstances, be somewhat unsafe to rely on this information to prove the appellant's guilt. We are accordingly disinclined to take into consideration this statement.” (Emphasis supplied) 40. It was laid down by the Hon’ble Supreme Court in Vijender v. State of Delhi, (1997) 6 SCC 171: 1997 SCC (Cri) 857 that where the fact was within the knowledge of the 49 2026:HHC:21224 police, it cannot be discovered at the instance of the accused. It was observed at page 179: “17. Another elementary statutory breach which we notice in recording the evidence of the above witnesses is that of Section 27 of the Evidence Act. Evidence was led through the above three police witnesses that, in consequence of information received from the three appellants on 30-6-1992, they discovered the place where the dead body of Khurshid was thrown. As already noticed, the dead body of Khurshid was recovered on 27-6-1992, and therefore, the question of the discovery of the place where it was thrown thereafter could not arise. Under Section 27 of the Evidence Act, if information given by the accused leads to the discovery of a fact which is the direct outcome of such information, then only it would be evidence, but when the fact has already been discovered, as in the instant case, evidence could not be led in respect thereof.” 41. A similar view was taken in Allarakha Habib Memon Etc. v. State of Gujarat, 2024 SCC OnLine SC 1910, wherein it was observed: “41. We find that these so-called confessions are ex facie inadmissible in evidence for the simple reason that the accused persons were presented at the hospital by the police officers after having been arrested in the present case. As such, the notings made by the Medical Officer, Dr Arvindbhai (PW-2), in the injury reports of Mohmedfaruk @ Palak and Amin @ Lalo would be clearly hit by Section 26 of the Indian Evidence Act, 1872 (hereinafter being referred to as ‘Evidence Act’). As a consequence, we are not inclined to accept the said admissions of the accused as incriminating pieces of evidence 50 2026:HHC:21224 relevant under Section 21 of the Evidence Act. The circumstance regarding the identification of the place of incident at the instance of the accused is also inadmissible because the crime scene was already known to the police, and no new fact was discovered in pursuance of the disclosure statements.” (Emphasis supplied) 42. Further, the police had not discovered any article pursuant to the disclosure statement made by the accused. It was laid down by the Hon’ble Supreme Court in H.P. Admn. v. Om Prakash, (1972) 1 SCC 249: 1972 SCC (Cri) 88, that pointing out the place from where the accused had purchased the weapon of offence does not amount to the fact discovered within the meaning of Section 27 of the Indian Evidence Act. It was observed: “13. Thereafter, on the information furnished by the accused that he had purchased the weapon from Ganga Singh, PW 11 and that he would take them to him, they went to the thari of PW 11, where the accused pointed him out to them. It is contended that the information given by the accused that he purchased the dagger from PW 11, followed by his leading the police to his thari and pointing him out, is inadmissible under Section 27 of the Evidence Act. In our view, there is force in this contention. A fact discovered within the meaning of Section 27 must refer to a material fact to which the information directly relates. In order to render the information admissible, the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. What is the fact discovered in this case? Not the dagger, but the dagger hid under the stone, 51 2026:HHC:21224 which is not known to the Police (See Pulukuri Kotayya v. King-Emperor [AIR 1947 PC 67: 74 IA 65].) But thereafter, can it be said that the information furnished by the accused that he purchased the dagger from PW 11 led to a fact discovered when the accused took the police to the thari of PW 11 and pointed him out? A single Bench of the Madras High Court in Public Prosecutor v. India China Lingiah, [AIR 1954 Mad 433: 1953 MWN 918: 1954 Cri LJ 583] and in Re Vallingiri, [AIR 1950 Mad 613 : (1950) 1 MLJ 467: 1950 MWN 297] seems to have taken the view that the information by an accused leading to the discovery of a witness to whom he had given stolen articles is a discovery of a fact within the meaning of Section 27. In Emperor v. Ramanuja Ayyangar, [AIR 1935 Mad 528: 1934 MWN 1479: 36 Cr LJ 1442: 42 MLW 124] a Full Bench of three Judges by a majority held that the statement of the accused “I purchased the mattress from this shop and it was this woman (another witness) that carried the mattress” as proved by the witness who visited him with the police was admissible because the word “fact” is not restricted to something which can be exhibited as a material object. This judgment was before the Pulukuri Kotayya case when, as far as the Presidency of Madras was concerned, the law laid down by the Full Bench of that Court, in Re Athappe Goundan, [ILR 1937 Mad 695: AIR 1937 Mad 618] prevailed. It held that where the accused's statement connects the fact discovered with the offence and makes it relevant, even though the statement amounts to a confession of the offence, it must be admitted because it is that which has led directly to the discovery. This view was overruled by the Privy Council in the Pulukuri Kotayya case, and this Court had approved the Privy Council case in Ramkishan Mithanlal Sharma v. State of Bombay [AIR 1955 SC 104: (1955) 1 SCR 903]. 14. In the Full Bench Judgment of Seven Judges in Sukhan v. Crown [ILR (1929) 10 Lah 283] which was 52 2026:HHC:21224 approved by the Privy Council in Pulukuri Kotayya case, Shadi Lal, C.J., as he then was speaking for the majority pointed out that the expression “fact” as defined by Section 3 of the Evidence Act includes not only the physical fact which can be perceived by the senses but also the psychological fact or mental condition of which any person is conscious and that it is in the former sense that the word used by the Legislature refers to a material and not to a mental fact. It is clear, therefore, that what should be discovered is the material fact, and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the “cause and effect”. That information which does not distinctly connect with the fact discovered, or that portion of the information which merely explains the material thing discovered, is not admissible under Section 27 and cannot be proved. As explained by this Court as well as by the Privy Council, normally, Section 27 is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the crime of which the informant is the accused. The concealment of the fact which is not known to the police is what is discovered by the information, and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the Police, can be said to be discovered as a consequence of the information furnished by the accused. These examples, however, are only by way of illustration and are not exhaustive. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him, hidden or kept with him, which the police did not know until the information was furnished to them by the accused. A witness cannot be said to be discovered if nothing is to be found or recovered from him as a 53 2026:HHC:21224 consequence of the information furnished by the accused, and the information that disclosed the identity of the witness will not be admissible. But even apart from the admissibility of the information under Section 27, the evidence of the Investigating Officer and the panchas that the accused had taken them to PW 11 and pointed him out and as corroborated by PW 11 himself, would be admissible under Section 8 of the Evidence Act as conduct of the accused.” 43. Therefore, no advantage can be derived from the disclosure statement made by the accused Sudershan Kumar. 44. It was submitted that the prosecution has relied upon the statements of related witnesses, and the independent witness was not examined. This submission will not help the defence. It was laid down by the Hon‘ble Supreme Court in Thoti Manohar vs State of Andhra Pradesh (2012) 7 SCC 723 that the court cannot discard the testimony of a witness on the ground of a relationship. It was observed: 31. In this context, we may refer with profit to the decision of this Court in Dalip Singh v. State of Punjab AIR 1953 SC 364, wherein Vivian Bose, J., speaking for the Court, observed as follows: - “We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the 54 2026:HHC:21224 witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased, we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. The State of Rajasthan (1952) SCR 377 at p. 390 = (AIR 1952 SC 54 at page 59).” 32. In the said case, it was further observed that: “A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted, and that usually means unless the witness has a cause, such as an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true that when feelings run high, and there is a personal cause for enmity, there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but the foundation must be laid for such criticism, and the mere fact of relationship, far from being a foundation, is often a sure guarantee of truth.” 33. In Masalti v. State of U.P. AIR 1965 SC 202, it has been ruled that normally close relatives of the deceased would not be considered to be interested witnesses who would also mention the names of the other persons as responsible for causing injuries to the deceased. 34. In Hari Obula Reddi and others v. The State of Andhra Pradesh AIR 1981 SC 82, a three-Judge Bench has held that evidence of interested witnesses is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. It can be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in 55 2026:HHC:21224 material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If, on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. 35. In Kartik Malhar v. State of Bihar (1996) 1 SCC 614, it has been opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term ‘interested’ postulates that the witness must have some interest in having the accused, somehow or other, convicted for some animus or some other reason. 36. In Pulicherla Nagaraju alias Nagaraja Reddy v. State of Andhra Pradesh AIR 2006 SC 3010, while dealing with the liability of interested witnesses who are relatives, a two- Judge Bench observed that: “It is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or close relative to the deceased if it is otherwise found to be trustworthy and credible.” The said evidence only requires scrutiny with more care and caution, so that neither the guilty escapes nor the innocent is wrongly convicted. If, on such careful scrutiny, the evidence is found to be reliable and probable, then it can be acted upon. “If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted.” 45. This position was reiterated in Rajesh Yadav vs. State of Bihar 2022 Cr.L.J. 2986 (SC) as under: 28. A related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can 56 2026:HHC:21224 also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstands the rigour of cross- examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness only when he is desirous of implicating the accused in rendering a conviction, on purpose. 29. When the court is convinced of the quality of the evidence produced, notwithstanding the classification as quoted above, it becomes the best evidence. Such testimony being natural, adding to the degree of probability, the court has to rely upon it in proving a fact. The aforesaid position of law has been well laid down in Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591: “32. Coming back to the appreciation of the evidence at hand, at the outset, our attention is drawn to the fact that the witnesses were interrelated, and this Court should be cautious in accepting their statements. It would be beneficial to recapitulate the law concerning the appreciation of evidence of a related witness. In Dalip Singh v. State of Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465, Vivian Bose, J. for the Bench, observed the law as under (AIR p. 366, para 26) “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted, and that usually means unless the witness has a cause, such as an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true when feelings run high, and there is a personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, 57 2026:HHC:21224 but the foundation must be laid for such a criticism, and the mere fact of relationship, far from being a foundation, is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” 33. In Masalti v. State of U.P., (1964) 8 SCR 133: AIR 1965 SC 202: (1965) 1 Cri LJ 226], a five-judge Bench of this Court has categorically observed as under (AIR pp. 209-210, para 14) “14. … There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence, whether or not the evidence strikes the court as genuine, and whether or not the story disclosed by the evidence is probable are all matters that must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to the failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. The judicial approach has to be cautious in 58 2026:HHC:21224 dealing with such evidence, but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 34. In Darya Singh v. State of Punjab [(1964) 3 SCR 397: AIR 1965 SC 328: (1965) 1 Cri LJ 350], this Court held that evidence of an eyewitness who is a near relative of the victim should be closely scrutinised, but no corroboration is necessary for acceptance of his evidence. In Harbans Kaur v. State of Haryana [(2005) 9 SCC 195: 2005 SCC (Cri) 1213: 2005 Cri LJ 2199], this Court observed that: (SCC p. 227, para 6) “6. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused.” 35. The last case we need to concern ourselves with is Namdeo v. State of Maharashtra [(2007) 14 SCC 150 : (2009) 1 SCC (Cri) 773], wherein this Court, after observing previous precedents, has summarised the law in the following manner: (SCC p. 164, para 38) “38. … It is clear that a close relative cannot be characterised as an “interested” witness. He is a “natural” witness. His evidence, however, must be scrutinised carefully. If, on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, a conviction can be based on the “sole” testimony of such a witness. A close relationship of the witness with the deceased or the victim is no grounds to reject his evidence. On the contrary, a close relative of the deceased would normally be most reluctant to spare 59 2026:HHC:21224 the real culprit and falsely implicate an innocent one.” 36. From the study of the aforesaid precedents of this Court, we may note that whoever has been a witness before the court of law, having a strong interest in the result, if allowed to be weighed in the same scales with those who do not have any interest in the result, would be to open the doors of the court for perverted truth. This sound rule, which remains the bulwark of this system and which determines the value of evidence derived from such sources, needs to be cautiously and carefully observed and enforced. There is no dispute about the fact that the interest of the witness must affect his testimony is a universal truth. Moreover, under the influence of bias, a man may not be in a position to judge correctly, even if they earnestly desire to do so. Similarly, he may not be in a position to provide evidence in an impartial manner when it involves his interest. Under such influences, man will, even though not consciously, suppress some facts, soften or modify others, and provide favourable colour. These are the most controlling considerations in respect to the credibility of human testimony, and should never be overlooked in applying the rules of evidence and determining its weight in the scale of truth under the facts and circumstances of each case.” 30. Once again, we reiterate with a word of caution that the trial court is the best court to decide on the aforesaid aspect, as no mathematical calculation or straightjacket formula can be made on the assessment of a witness, as the journey towards the truth can be seen better through the eyes of the trial judge. In fact, this is the real objective behind the enactment itself, which extends the maximum discretion to the court.” 60 2026:HHC:21224 46. Similar is the judgment in M Nageswara Reddy vs. State of Andhra Pradesh 2022 (5) SCC 791, wherein it was observed: 10. Having gone through the deposition of the relevant witnesses -eye-witnesses/injured eye- witnesses, we are of the opinion that there are no major/material contradictions in the deposition of the eye-witnesses and injured eye-witnesses. All are consistent insofar as accused Nos. 1 to 3 are concerned. As observed hereinabove, PW6 has identified Accused Nos. 1 to 3. The High Court has observed that PW1, PW3 & PW5 were planted witnesses merely on the ground that they were all interested witnesses, being relatives of the deceased. Merely because the witnesses were the relatives of the deceased, their evidence cannot be discarded solely on the aforesaid ground. Therefore, in the facts and circumstances of the case, the High Court has materially erred in discarding the deposition/evidence of PW1, PW3, PW5 & PW6 and even PW7. 47. Hence, the testimonies cannot be discarded due to the relationship alone. 48. The testimonies of the witnesses duly established that the accused Sudershan Kumar had pushed the informant into the septic tank, and the juvenile had inflicted a blow on the informant’s head by means of a brick. 49. The evidence shows that the accused Sudershan had settled the matter with the informant 61 2026:HHC:21224 regarding the construction. However, the accused Sudershan and the juvenile came to the spot together and tried to stop the construction work. When the informant referred to the compromise, the accused Sudershan Kumar had pushed the informant, and he fell into the septic tank. The juvenile picked up a brick and inflicted a blow on the informant’s head. Both the accused thereafter went away together. All these circumstances show that both the accused were acting in concert. Therefore, they are liable by virtue of Section 34 of the IPC. 50. Section 34 of IPC was explained by the Hon’ble Supreme Court in Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545: (2022) 1 SCC (Cri) 526: 2022 SCC OnLine SC 20 as under at page 554: 20. Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance of a common intention. The onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of the evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused 62 2026:HHC:21224 by treating him on a par with the one who actually committed the offence. 21. What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34 IPC does not get attracted. 22. It is a team effort akin to a game of football involving several positions manned by many, such as defender, midfielder, striker, and keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared among the players. The same logic is the foundation of Section 34 IPC, which creates shared liability on those who shared the common intention to commit the crime. 23. The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act “in furtherance of the said intention”. One need not search for concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offence. 24. Normally, in an offence committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offence consists 63 2026:HHC:21224 of diverse acts done at different times and places. Therefore, it has to be seen on a case-by-case basis. 25. The word “furtherance” indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion. 26. There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention, it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offence. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid. 27. The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person, despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others, might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect that requires to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court. 64 2026:HHC:21224 51. Similar is the judgment in State of Madhya Pradesh vs. Jad Bai (2023) 6 Supreme Court Cases 552, wherein it was observed: - 15. In Gurbachan Singh [State of Rajasthan v. Gurbachan Singh, (2022) 15 SCC 817: 2022 SCC OnLine SC 1716], it is observed and held as under: (SCC paras 17-18) “17. Given the aforesaid position, we are of the view that Section 34IPC, i.e. common intention, is clearly attracted in the case of Gurbachan Singh, whose case cannot be distinguished, so as to exclude him as one who did not share common intention with Darshan Singh, Balvir Singh and Manjit Singh. Section 34IPC makes a co- perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34IPC to apply, there should be a common intention among the co-perpetrators, which means that there should be a community of purpose and common design. Common intention can be formed at the spur of the moment and during the occurrence itself. 18. Common intention is necessarily a psychological fact, and as such, direct evidence normally will not be available. Therefore, in most cases, whether or not there exists a common intention has to be determined by drawing an inference from the facts proved. Constructive intention can be arrived at only when the court can hold that the accused must have preconceived the result that ensued in furtherance of the common intention.” 65 2026:HHC:21224 52. In the present case, the accused and the juvenile had acted together, and the learned trial Court had rightly held that both the accused shared the common intention to cause hurt to the informant and both the accused would be liable by applying Section 34 of the IPC. 53. The Medical Officer stated that the informant had sustained injuries, which were sufficient to cause death in the ordinary course of nature. The injury was caused to the head, a vital part; therefore, there is no infirmity in convicting the accused for the commission of an offence punishable under Section 304, Part II of IPC. 54. The learned Trial Court also convicted the accused for the commission of an offence punishable under Section 341 of the IPC. No witness stated that the accused had restrained the informant from proceeding in any direction. The statement (Ext.P-2/PW 10) mentions that Sudershan Kumar and the juvenile stopped him on the way and asked him to stop the work at about 12:30 p.m. However, since no other witness has stated this fact and the witnesses only claimed that the accused came to the construction site where the informant was present, the accused is entitled to the benefit of doubt regarding 66 2026:HHC:21224 the commission of an offence punishable under section 341 of the IPC. 55. The witness stated that the accused abused the informant and threatened to do away with his life. No witness has mentioned the exact words used by the accused. The ingredients of Section 504 of IPC were explained by the Hon’ble Supreme Court in Mohd. Wajid v. State of U.P., (2023) 20 SCC 219: 2023 SCC OnLine SC 951 as under: - “29. Section 504 of the IPC contemplates intentionally insulting a person and thereby provoking such person insulted to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence. If abusive language is used intentionally and is of such a nature as would in the ordinary course of events lead the person insulted to break the peace or to commit an offence under the law, the case is not taken away from the purview of the Section merely because the insulted person did not actually break the peace or commit any offence having exercised self-control or having been subjected to abject terror by the offender. In judging whether particular abusive language is attracted by Section 504, IPC, the court has to find out what, in 67 2026:HHC:21224 ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy, cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace, and not the particular conduct or temperament of the complainant. 30. Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, IPC if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case, and there cannot be a general proposition that no one commits an offence under Section 504, IPC if he merely uses abusive language against the complainant. In King Emperor v. Chunnibhai Dayabhai, (1902) 4 Bom LR 78, a Division Bench of the Bombay High Court pointed out that: — “To constitute an offence under Section 504, I.P.C., it is sufficient if the insult is of a kind calculated to cause the other party to lose his temper and say or do something violent. Public peace can be broken by angry words as well as deeds.” (emphasis supplied) 31. A bare perusal of Section 506 of the IPC makes it clear that a part of it relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant. 68 2026:HHC:21224 32. In the facts and circumstances of the case and more particularly, considering the nature of the allegations levelled in the FIR, a prima facie case to constitute the offence punishable under Section 506 of the IPC may probably be said to have been disclosed, but not under Section 504 of the IPC. The allegations with respect to the offence punishable under Section 504 of the IPC can also be looked at from a different perspective. In the FIR, all that the first informant has stated is that abusive language was used by the accused persons. What exactly was uttered in the form of abuses is not stated in the FIR. One of the essential elements, as discussed above, constituting an offence under Section 504 of the IPC is that there should have been an act or conduct amounting to intentional insult. Where that act is the use of abusive words, it is necessary to know what those words were in order to decide whether the use of those words amounted to an intentional insult. In the absence of these words, it is not possible to decide whether the ingredient of intentional insult is present.” 56. It was laid down by the Hon'ble Supreme Court in Vikram Johar v. State of U.P., (2019) 14 SCC 207: (2019) 4 SCC (Cri) 795: 2019 SCC OnLine SC 609 that mere abuse is not sufficient to attract Section 504 of IPC. It was observed at page 217: - 21. Section 504 IPC came up for consideration before this Court in Fiona Shrikhande v. State of Maharashtra [Fiona Shrikhande v. State of Maharashtra, (2013) 14 SCC 44: (2014) 1 SCC (Cri) 715]. In the said case, this Court had the occasion to examine the ingredients of Section 504 IPC, which need to be present before proceeding to try a case. The Court held that in the said case, the order 69 2026:HHC:21224 issuing process was challenged by filing a criminal revision. This Court held that at the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused. In para 11, the following principles have been laid down: (SCC pp. 48-49) “11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards the issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused, and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. The Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only to consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa v. Veeranna Shivalingappa Konjalgi [Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736: 1976 SCC (Cri) 507], this Court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint, without at all adverting to any defence that the accused may have.” 22. In para 13 of the judgment, this Court has noticed 70 2026:HHC:21224 the ingredients of Section 504 IPC, which are to the following effect: (Fiona Shrikhande case [Fiona Shrikhande v. State of Maharashtra, (2013) 14 SCC 44: (2014) 1 SCC (Cri) 715], SCC p. 49) “13. Section 504 IPC comprises the following ingredients, viz. (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that it should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults, intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause a breach of the public peace, or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult, and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC.” 23. In another judgment, i.e. Manik Taneja v. State of Karnataka [Manik Taneja v. State of Karnataka, (2015) 7 SCC 423: (2015) 3 SCC (Cri) 132], this Court has again occasion to examine the ingredients of Sections 503 and 506. In the above case, a case was registered for the offence under Sections 353 and 506 IPC. After noticing Section 503, which defines criminal intimidation, this Court laid down the following in paras 11 and 12 : (SCC pp. 427-28) “11.*** A reading of the definition of “criminal 71 2026:HHC:21224 intimidation” would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do. 12. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of “criminal intimidation”. The threat must be with the intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the mind of the second respondent, causing obstruction in the discharge of his duty. As far as the comments posted on Facebook are concerned, it appears that it is a public forum meant for helping the public, and the act of the appellants posting a comment on Facebook may not attract ingredients of criminal intimidation in Section 503 IPC.” In the above case, the allegation was that the appellant had abused the complainant. The Court held that the mere fact that the allegation that the accused had abused the complainant does not satisfy the ingredients of Section 506 IPC. 72 2026:HHC:21224 24. Now, we revert back to the allegations in the complaint against the appellant. The allegation is that the appellant, with two or three other unknown persons, one of whom was holding a revolver, came to the complainant's house and abused him in filthy language and attempted to assault him, and when some neighbours arrived there, the appellant and the other persons accompanying him fled the spot. The above allegation, taking on its face value, does not satisfy the ingredients of Sections 504 and 506 as have been enumerated by this Court in the above two judgments. The intentional insult must be of such a degree that it should provoke a person to break the public peace or to commit any other offence. The mere allegation that the appellant came and abused the complainant does not satisfy the ingredients as laid down in para 13 of the judgment of this Court in Fiona Shrikhande [Fiona Shrikhande v. State of Maharashtra, (2013) 14 SCC 44: (2014) 1 SCC (Cri) 715]. 57. This position was reiterated in B.V. Ram Kumar v. State of Telangana, 2025 SCC OnLine SC 275, wherein it was observed: “19. For appreciating the necessary ingredients required to substantiate a charge under Section 504, IPC, a reference in this regard may be made to the judgment of this Court in Fiona Shrikhande v. State of Maharashtra (2013) 14 SCC 44, wherein the Court discussed the essential ingredients of Section 504, IPC. The Court held as follows: — “13. Section 504 IPC comprises the following ingredients, viz. (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that it should provoke a person to break the public peace 73 2026:HHC:21224 or to commit any other offence. The person who intentionally insults, intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause a breach of the public peace, or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult, and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC.” 14. We may also indicate that it is not the law that the actual words or language should figure in the complaint. One has to read the complaint as a whole and, by doing so, if the Magistrate comes to a conclusion, prima facie, that there has been an intentional insult so as to provoke any person to break the public peace or to commit any other offence, that is sufficient to bring the complaint within the ambit of Section 504 IPC. It is not the law that a complainant should verbatim reproduce each word or words capable of provoking the other person to commit any other offence. The background facts, circumstances, the occasion, the manner in which they are used, the person or persons to whom they are addressed, the time, the conduct of the person who has indulged in such actions are all relevant factors to be borne in mind while examining a complaint lodged for initiating proceedings under Section 504 IPC.” (emphasis supplied) 20. Thus, upon reading the complaint as a whole, if the Magistrate comes to a conclusion, prima facie, that there has been an intentional insult made by the accused to the complainant so as to provoke the latter to break the public peace or to commit any other offence, then only the act complained of would fall within the ambit of Section 504, IPC. The law does not mandate that the complainant should verbatim reproduce each word or words capable of 74 2026:HHC:21224 provoking him/her to commit a breach of peace or any other offence. The background facts, circumstances, the occasion, the manner in which the offending words are used, the person to whom they are addressed, the time, and the conduct of the person who has indulged in such actions are all relevant factors to be borne in mind while examining a complaint lodged for initiating proceedings under Section 504, IPC. 21. Further, this Court in the case of Mohammad Wajid v. State of U.P. 2023 SCC Online SC 951, while discussing Section 504, IPC, propounded the test for considering the circumstances wherein an abusive language takes the form and shape of an intentional insult and held thus: — “28. Section 504 of the IPC contemplates intentionally insulting a person and thereby provoking such person to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence. If abusive language is used intentionally and is of such a nature as would in the ordinary course of events lead the person insulted to break the peace or to commit an offence under the law, the case is not taken away from the purview of the Section merely because the insulted person did not actually break the peace or commit any offence having exercised self-control or having been subjected to abject terror by the offender. In judging whether particular abusive language is attracted by Section 504, IPC, the court has to find out what, in ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy, cool temperament or sense of discipline. It is the 75 2026:HHC:21224 ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace, and not the particular conduct or temperament of the complainant. 29. Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, IPC if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case, and there cannot be a general proposition that no one commits an offence under Section 504, IPC if he merely uses abusive language against the complainant.” (emphasis supplied) 22. Needless to say, mere abuse, discourtesy, rudeness or insolence does not amount to an intentional insult within the meaning of Section 504, IPC. Furthermore, it would be immaterial that the person who has been insulted and provoked did not actually break the peace or commit any offence. 23. Section 504, IPC consists of two parts. Firstly, the actus reus being the intentional insult which gives rise to the provocation. Secondly, the mens rea, i.e., the intention or knowledge on the part of the accused that such intentional provocation is likely to cause the person insulted to break public peace or commit any other offence. The animus nocendi in Section 504, IPC is that the accused should ‘intentionally insult’ the other person with the intention or knowledge that the provocation caused by such insult is likely to result in the commission of a breach of public peace or any other offence by the person who has been so insulted. The offence is said to be complete once 76 2026:HHC:21224 the accused person makes an ‘intentional insult’ with the aforesaid mens rea. Hence, intention or knowledge on the part of the accused person that his actions of making an ‘intentional insult’ have the potential to provoke the person insulted is sine qua non for the commission of the offence under Section 504, IPC. 24. The natural corollary of the above discussion is that if the accused does not intend to give provocation, the offence is not made out. An insult without an ‘intention to insult’ is not punishable under Section 504, IPC. Further, ‘intentional insult’ must be of such a degree that it has the potential to provoke a reasonable person to break the public peace or to commit any other offence. 25. It is trite that whether the person provoked further commits an illegal act or not is immaterial to draw the conclusion of culpability under Section 504, IPC. The ‘intentional insult’ and provocation must be so proximate and close that the accused has either the intention or the knowledge that the intentional insult made by him is likely to cause the provoked person to break public peace or commit some other offence. However, what would be the nature of ‘intentional insult’ causing provocation, to draw culpability under Section 504, IPC, would depend upon the facts and circumstances of each case. The test to be applied to determine if the intentional insult made by the accused is sufficient to cause provocation is that of a reasonable person, i.e., if the insult is sufficient to provoke any reasonable person to break the peace or commit any other offence, only then the accused will be liable for the offence under Section 504, IPC.” 58. Hence, the mere use of the word abused is not sufficient to convict the accused of the commission of an offence under Section 504 of the IPC, and the learned Trial 77 2026:HHC:21224 Court erred in convicting the accused of the commission of an offence punishable under Section 504 of the IPC. 59. Learned Trial Court convicted the accused of the commission of an offence punishable under Section 506 of the IPC. Criminal intimidation is defined in Section 503 of the IPC as under: - 503. Criminal intimidation Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation- A threat to injure the reputation of any deceased person in whom the person threatened is interested is within this section. 60. Section 503 requires that the threat of injury should have been made with an intent to cause alarm to a person, to do an act, which a person is not legally bound to do or omit to do any act which he is legally entitled to do. It was laid down by this Court in Inder Pratap Singh Versus State of Himachal Pradesh 2003 (1) Crimes 345 (HC) that the complainant should have been alarmed by the threat 78 2026:HHC:21224 advanced by the accused to attract section 506 of IPC. It was observed: “21. Similarly, before an offence of criminal intimidation can be made out, it must be established prima facie that the accused persons (like petitioners in the present case) intended to cause an alarm to the complainant party, i. e., Jasbeer Singh. Mere threats, as alleged by him, extended by the petitioners, with a view to deter the complainant from interfering with what the petitioner believed to be his exclusive property, would not constitute an offence of criminal intimidation.” 61. Similar is the judgment of Hon’ble Supreme Court in Vikram Johar v. State of U.P., (2019) 14 SCC 207: (2019) 4 SCC (Cri) 795: 2019 SCC OnLine SC 609 wherein it was held at page 209: - “25. Now, reverting back to Section 506, which is an offence of criminal intimidation, the principles laid down by Fiona Shrikhande v. State of Maharashtra, (2013) 14 SCC 44 : (2014) 1 SCC (Cri) 715 have also to be applied when the question of finding out as to whether the ingredients of the offence are made or not. Here, the only allegation is that the appellant abused the complainant. For proving an offence under Section 506 IPC, what are the ingredients that have to be proved by the prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27th Edn., with regard to proof of offence, states the following: “… The prosecution must prove: (i) That the accused threatened some person. 79 2026:HHC:21224 (ii) That such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of someone in whom he was interested; (iii) That he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat.” (emphasis supplied) A plain reading of the allegations in the complaint does not satisfy all the ingredients as noticed above. 62. In the present case, the eyewitnesses have not stated that the informant was alarmed by the threats advanced by the accused. Rajesh Kumar (PW-1) stated that the accused threatened that the informant would have to face dire consequences. Shivam (PW-2) stated that the accused threatened to do away with the informant’s life. Paramjit (PW-3) has not stated anything about the threat. Therefore, there are variations regarding the threat advanced by the accused, and the accused is entitled to the benefit of doubt. 63. The learned Trial Court also convicted the accused of the commission of an offence punishable under section 323 of the IPC for causing injury to the informant, who had subsequently succumbed to the injury; therefore, 80 2026:HHC:21224 in view of section 71 of IPC, the accused cannot be held liable for the commission of an offence punishable under section 323 of the IPC, when he has been convicted and sentenced for the commission of an offence punishable under section 304, Part II of the IPC. Therefore, no sentence is required to be passed for the commission of an offence punishable under Section 302 of the IPC. 64. Learned Trial Court sentenced the accused to undergo rigorous imprisonment for seven years, pay a fine of ₹50,000 and, in default of payment of fine, to further undergo simple imprisonment for six months for the commission of an offence punishable under Section 304 Part II of the IPC. The offence punishable under Section 304, Part II of the IPC is punishable with imprisonment of 10 years. In the present case, the accused had pushed the informant, and the juvenile had inflicted one injury on the head, leading to the death. The accused is the brother of the informant, and the dispute arose over the land. The accused were not armed with any weapon, and the brick was picked up from the spot. The accused had also not acted in a gruesome manner by repeatedly inflicting the injuries, but had caused only one injury to 81 2026:HHC:21224 the informant on his head, which proved fatal. Therefore, in these circumstances, the punishment of seven years is excessive and is reduced to five years. However, the fine of ₹50,000 is not excessive considering that the amount has been ordered to be disbursed as compensation to the family of the deceased. 65. Therefore, the present appeal is partly allowed, and the conviction of the accused under Section 304 Part II of the IPC is maintained, but the sentence imposed is reduced to rigorous imprisonment for five years and a fine of ₹50,000. In default of payment of fine, the accused will undergo simple imprisonment for six months for the commission of an offence punishable under Section 304, Part II. The rest of the conviction and sentences are set aside. It is ordered that the amount of ₹50,000 would be disbursed to the family of the deceased as compensation under Section 357-A of the Cr.P.C. Modified jail warrants be prepared. 66. The present appeal stands disposed of in the aforesaid terms, so also the pending applications, if any. 82 2026:HHC:21224 67. A copy of the judgment, along with the record of the learned Trial Court, be sent back forthwith. (Rakesh Kainthla) 02nd June, 2026. Judge (ravinder)