The Delhi High Court has upheld the conviction of five men for culpable homicide not amounting to murder in connection with the killing of 22-year-old Monish during the February 2020 North-East Delhi riots, affirming their seven-year rigorous imprisonment sentence.
Justice Madhu Jain dismissed the appeals filed by Aman Kashyap, Devinder Kumar, Pradeep Rai, Ashish alias Goli and Arun Kumar, upholding their conviction under Sections 148 and 304 Part I read with Section 149 of the Indian Penal Code (IPC). The Court held that the prosecution evidence established more than the appellants’ mere presence in a crowd: it placed them at the forefront of an armed mob that pursued and assaulted the deceased.
The central question before the Court was whether the appellants could be held collectively liable for the death when the prosecution had not established which individual had inflicted the fatal head injuries. Affirming the trial court’s findings, the High Court held that the absence of proof identifying the individual assailant was not, by itself, sufficient to absolve the appellants of liability under Section 149 IPC. The Court held that the weapons carried by the mob, the exhortations attributed to the appellants and the continued assault provided the factual basis for finding that the assembly shared the unlawful common object of assaulting the deceased and causing bodily harm.
“In the present case, the evidence establishes more than the mere presence of the appellants in a crowd. PW-10 identified all five appellants at the forefront of the armed mob, exhorting others to assault the deceased. The deceased was pursued, surrounded and assaulted even after he had fallen near the police barricades. The conduct attributed to the appellants, the weapons carried by members of the mob and the continued assault upon the deceased provide the factual basis for concluding that the assembly had an unlawful common object of assaulting the deceased and causing bodily harm to him.” (Para 67)
Prosecution evidence and the appellants’ challenge
The case arose from an incident on February 25, 2020, when Monish was allegedly chased and assaulted by a mob near Gali No. 3, Brijpuri, in the vicinity of Peer Baba Mazar, Chand Bagh. He was subsequently taken to Guru Teg Bahadur Hospital, where he died from his injuries. The post-mortem report attributed his death to shock resulting from ante-mortem brain injuries caused by blunt-force impact.
The trial court, by its judgment dated November 30, 2024, convicted the five appellants under Sections 148 and 304 Part I read with Section 149 IPC. By its order dated January 13, 2025, it sentenced them to one year of simple imprisonment for rioting while armed with a deadly weapon and seven years of rigorous imprisonment, along with a fine of ₹30,000, for culpable homicide not amounting to murder. The substantive sentences were directed to run concurrently.
Challenging the conviction, the appellants questioned the credibility of the eyewitnesses, the delay in recording the police witnesses’ statements, the absence of a test identification parade (TIP) and alleged deficiencies in the investigation. They also disputed the identification evidence and argued that the prosecution had failed to establish their participation in the assault or the common object necessary to attract constructive liability under Section 149 IPC.
The defence particularly relied on the changing testimony of Shashi Kant, who initially attributed the assault to the accused but subsequently clarified that he had seen the five appellants in the mob without personally witnessing them strike the deceased. Manoj Kaniyal, another prosecution witness, did not identify the appellants before the trial court and denied the prosecution’s suggestions concerning their identification.
High Court assesses identification evidence and police testimony
Rejecting the challenge to the identification evidence, the High Court placed primary reliance on the testimony of Constable Piyush, the beat constable of the locality, who stated that he knew the appellants before the incident through his official duties.
Piyush identified the five men as being at the forefront of the mob, carrying weapons and shouting “maaro maaro”. According to his testimony, the deceased was chased, assaulted near the police barricades and repeatedly beaten even after falling. The police personnel subsequently intervened, dispersed the mob and arranged for the injured man to be taken to hospital.
Head Constable Deepak and Constable Vineet substantially corroborated the account of the pursuit, assault and police intervention. The Court acknowledged, however, that these witnesses had obtained the appellants’ names from Piyush, and that their identification was not independent of his insofar as the names were concerned. Their evidence nevertheless supported the occurrence and the contemporaneous pointing out of the persons allegedly involved.
The Court also rejected the contention that the police witnesses’ testimony should be discarded merely because they were public officials. Relying on the Supreme Court’s decision in Girja Prasad v. State of Madhya Pradesh, it reiterated that police testimony must be assessed on its own merits rather than rejected on the basis of the witness’s official status. The Court noted that duty records supported the witnesses’ presence at the police picket and that their accounts substantially corresponded on the pursuit, assault and rescue of the deceased.
“In the present case, the presence of the said witnesses at the police picket is supported by the duty records, and their accounts substantially correspond regarding the manner in which the deceased was pursued, assaulted and subsequently rescued. Their official status, therefore, cannot constitute an independent ground for rejecting their testimonies.” (Para 53)
On the absence of a TIP, the Court relied on Malkhansingh v. State of Madhya Pradesh, reiterating that identification in court constitutes substantive evidence, while a TIP ordinarily tests a witness’s ability to identify a suspect during investigation. The absence of a TIP does not automatically render identification inadmissible, although its evidentiary value must be assessed with due caution. The Court considered Piyush’s prior familiarity with the appellants particularly relevant to this question.
Delay in recording statements and investigative lapses
The High Court acknowledged that the statements of the three police eyewitnesses were recorded on April 1, 2020, more than a month after the incident. It also noted the investigating officer’s admission that the witnesses had not approached him on their own and had instead been called for examination during the investigation.
The Court cautioned that the delay could not be accepted mechanically merely because the incident occurred during the riots. Nevertheless, after considering the explanation that several riot-related cases were being investigated simultaneously, along with the evidence of the police witnesses, it held that the delay did not, by itself, discredit the occurrence or establish false implication.
The judgment also addressed discrepancies concerning the precise place of the assault, the PCR call and the use of electronic evidence. It clarified that the hospital CCTV footage had been relied upon to identify the injured person, not to establish visually that the appellants had participated in the assault. Similarly, call-detail records could indicate the approximate location of a mobile device but could not conclusively establish the user’s precise physical location at a particular moment.
Acknowledging the investigative deficiencies raised by the defence, the Court held that such lapses did not automatically displace otherwise reliable eyewitness evidence. The relevant inquiry, it said, was whether an omission undermined the credibility of the evidence or prejudiced the assessment of guilt.
Section 149 IPC: Liability without proof of the individual fatal blow
The principal legal issue concerned the application of Section 149 IPC, which attributes liability to members of an unlawful assembly for offences committed in prosecution of its common object, or offences that its members knew were likely to be committed in prosecution of that object.
The Court relied on Masalti v. State of Uttar Pradesh and Lalji v. State of Uttar Pradesh to reiterate that the prosecution need not invariably establish an individual overt act by every member of an unlawful assembly. However, it also invoked Kuldip Yadav v. State of Bihar to emphasise that mere presence in an assembly, or possession of a weapon, is insufficient without establishing the unlawful common object or the requisite knowledge.
Applying these principles, the Court found that the prosecution evidence went beyond establishing the appellants’ presence in a crowd. Piyush had identified them as being at the forefront of an armed mob and exhorting others to assault Monish. The deceased was pursued, surrounded and assaulted even after he fell near the police barricades.
Taken together, the conduct attributed to the appellants, the weapons carried by members of the mob and the continued assault supported the finding that the assembly shared the unlawful common object of assaulting the deceased and causing bodily harm.
The Court therefore held that the prosecution’s inability to identify the particular person who inflicted the fatal head injuries did not, by itself, absolve the appellants of liability. The decisive consideration was whether the offence was committed in prosecution of the assembly’s common object or was one its members knew was likely to be committed in pursuit of that object.
Why the conviction under Section 304 Part I IPC was upheld
The High Court separately examined the nature of the offence, emphasising that the fact of death alone could not determine whether the case fell under Section 304 Part I or Part II IPC. Part I applies where the act causing death is accompanied by the intention to cause death or such bodily injury as is likely to cause death. Part II applies where the accused has the requisite knowledge that death is likely but lacks the intention contemplated under Part I.
Relying on the evidence concerning the weapons carried by the mob, the exhortations attributed to the appellants and the manner in which Monish was assaulted, the Court held that these circumstances had to be considered together in determining the requisite mental element. It noted that the deceased was pursued by an armed mob, repeatedly assaulted after falling and sustained head injuries that proved fatal.
The Court thus upheld the finding that the offence involved the requisite intention under Section 304 Part I IPC and was committed in prosecution of the unlawful assembly’s common object, or was an offence its members knew was likely to be committed in pursuit of that object. Accordingly, the High Court dismissed all five appeals and affirmed the trial court’s judgment of conviction dated November 30, 2024, and order on sentence dated January 13, 2025.
The complete judgment may be read below:
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