[2023] 12 S.C.R. 381 : 2023 INSC 840
SUNIL
v.
STATE OF NCT OF DELHI
(Criminal Appeal No.688 of 2011)
SEPTEMBER 21, 2023
[HRISHIKESH ROY AND MANOJ MISRA, JJ.]
Issues for consideration: (i) Whether based on the evidence
led, the appellants could be convicted for the offence of murder of
the two deceased with the aid of s.34 IPC or only for the offence
punishable u/s. 307 IPC r/w. s. 34 IPC;
(ii) Whether, on account of not putting the incriminating circumstance
of exhortation to the appellants while recording their statements
u/s. 313 Cr.PC, appellants’ conviction with the aid of s.34 of the
IPC stood vitiated.
Penal Code, 1860 – Prosecution case that there was an
altercation between two families – The main accused went to
his house on Street No.400, fetched his gun and fired shots
at the public present on Street No.300 from roof of one of the
row houses – Gunshots resulted in death of two persons and
injuries to twenty-six others – Main accused (non-appellant)
was convicted u/s. 302 IPC – Appellants were convicted u/s.
302 r/w. s.34 IPC and s. 307 r/w. s.34 IPC – Propriety:
Held: A close examination of the statement of the prosecution
witnesses (regarding role of appellants) would reveal that, though
they disclose the presence of the accused-appellants with main
accused at the roof-top as also that they were instigating main
accused not to spare the supporters of rival faction, they are not
specific and consistent to target the said two deceased persons
– There is absence of cogent evidence that main accused was
instigated/exhorted to fire shots at the two deceased – The
evidence, which is consistent, is about exhorting main accused
not to spare rival faction’s supporters – But there is no evidence
that the two deceased were rival faction’s supporters – General
* Author
382 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
exhortation is not sufficient to fasten them with vicarious liability for
shots fired by the main accused at the two deceased – The main
accused had taken a vow to teach supporters of the other side
a lesson – In that kind of a scenario, even if main accused had
not been instigated by any of the other accused, he might have
fired from his weapon to stamp his authority – Therefore, killing
of the two deceased could be his own individual act for which
he alone would be liable – The prosecution was required to lead
clear and cogent evidence that the shots fired by main accused
at the two deceased were in furtherance of common intention of
all – In absence whereof, it would be extremely unsafe to convict
the appellants with the aid of s.34 of the IPC for the offence of
murder. [Paras 26 and 31]
Penal Code, 1860 – s. 307 r/w. s.34 IPC – Conviction under:
Held: Evidence is that the appellants were with the main accused,
exhorting him not to spare rival faction’s supporters, and pointing
at targets – Though, evidence might not be specific as to who
in particular was targeted at the behest of the appellants but the
very fact that indiscriminate firing continued for long, say 20-25
minutes and the appellants were found present and exhorting main
accused to fire, it could be said with certainty that the appellants
had knowledge that the act which the main accused was exhorted to
commit was so imminently dangerous that it must, in all probability,
cause death or such bodily injury as is likely to cause death of a
person (Section 300 (Fourthly) of the I.P.C along with illustration
(d) thereto) – Therefore, the gunshots fired by the main accused
at several by-standers/supporters of rival faction, if not all, could
be said to be a criminal act done by several persons in furtherance
of the common intention of all – The appellants are liable to be
convicted for the offence punishable u/s. 307 with the aid of s.34
of the IPC [Paras 32 and 33]
Penal Code, 1860 – s. 34 – Common intention – Necessity:
Held: To fasten liability with the aid of s.34 of the IPC what must
necessarily be proved is a common intention to commit the crime
actually committed and each accused person can be convicted
of that crime, only if it is in furtherance of common intention of
[2023] 12 S.C.R. 383
SUNIL v. STATE OF NCT OF DELHI
all – Common intention pre-supposes a prior concert, though preconcert in the sense of a distinct previous plan is not necessary as
common intention to bring about a particular result may develop
on the spot – The question whether there was any common
intention or not depends upon the inference to be drawn from the
proven facts and circumstances of each case – The totality of
the circumstances must be taken into consideration in arriving at
the conclusion whether the accused had a common intention to
commit an offence with which they could be convicted. [Para 29]
Criminal Procedure Code, 1973 – Effect of not putting the
incriminating circumstance of exhortation to the appellants
while recording their statements u/s. 313 of the Cr.PC, 1973:
Held: The legal position that emerges, inter-alia, is that to enable
an accused to explain the circumstances appearing in the evidence
against him, all the incriminating circumstances appearing against
him in the evidence must be put to him – But where there has
been a failure in putting those circumstances to the accused, the
same would not ipso facto vitiate the trial unless it is shown that
its non-compliance has prejudiced the accused – Where there is
a delay in raising the plea, or the plea is raised for the first time
in this Court, it could be assumed that no prejudice had been felt
by the accused – In the instant case, appellants were aware of
the prosecution case against them as they were apprised of the
FIR lodged by PW-2 which delineated their role as the ones who
exhorted the main accused to fire gunshots – Taking the above into
account as also that the appellants were throughout represented by
their counsel and had cross-examined the prosecution witnesses,
yet they raised no such plea, either before the trial court or the High
Court, it can safely be assumed that the appellants had suffered
no prejudice on that count. [Para 45]
Pandurang, Tukia and Bhillia v. State of Hyderabad
AIR 1955 SC 216:[1955] SCR 1083; Balu Alias Bala
Subramaniam & Another v. State (UT of Pondicherry)
(2016) 15 SCC 471:[2015] 11 SCR 708; Mewa Ram &
Another v. State of Rajasthan (2017) 11 SCC 272; Tara
Singh v. State AIR 1951 SC 441:1951 SCC Online SC
49:[1951] SCR 729; Alister Anthony Pareira v. State of
384 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
Maharashtra (2012) 2 SCC 648:[2012] 1 SCR 145;Nar
Singh v. State of Haryana (2015) 1 SCC 496:[2014] 12
SCR 218; Shobhit Chamar & Another v. State of Bihar
(1998) 3 SCC 455:[1998] 2 SCR 117;Satyavir Singh
Rathi, ACP & Others v. State (2011) 6 SCC 1:[2011] 6
SCR 138 – relied on.
Kulwant Singh alias Kulbansh Singh v. State of Bihar
(2007) 15 SCC 670:[2007] 7 SCR 1178; Jainul Haque
v. State of Bihar (1974) 3 SCC 543; Hardev Singh &
Another v. The State of Punjab (1975) 3 SCC 731;
Mohan Singh & Another v. State of M.P. (1999) 2 SCC
428:[1999] 1 SCR 276; Zahoor & Others v. State of
Uttar Pradesh (2011) 15 SCC 218:[2011] 5 SCR 881;
Bishnupada Sarkar & Another v. State of West Bengal
(2012) 11 SCC 597:[2012] 6 SCR 230; Hate Singh v.
State of Madhya Bharat AIR 1953 SC 468; Sujeet Biswas
v. State of Assam (2013) 12 SCC 406:[2013] 3 SCR
830; Sharad Birdichand Sharda v. State of Maharashtra
(1984) 4 SCC 116:[1985] 1 SCR 88; Samsul Haque v.
State of Assam (2019) 18 SCC 161; Maheshwar Tigga
v. State of Rajasthan (2020) 10 SCC 108:[2020] 9 SCR
482; Gulab v. State of Uttar Pradesh (2022) 12 SCC
677; Sandeep v. State of Haryana 2021 SCC Online
SC 642 – referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.688
of 2011.
From the Judgment and Order dated 28.07.2009 of the High Court
of Delhi at New Delhi in CRLA No.962 of 2004.
With
Criminal Appeal Nos.689 And 785 of 2011.
Sudarshan Rajan, Mahesh Kumar, Hitain Bajaj, Rohit Bhardwaj,
Ramesh Rawat, Lakshay Laroiya, Vijay Kumar Sharma, Md. Qamar
Ali, Advs. for the Appellant.
Jayant K. Sud, A.S.G., Shreekant Neelappa Terdal, Mukul Singh,
Rajesh Singh Chauhan, P. V. Yogeswaran, Rajan Kr Chourasia, Dr.
N. Visakamurthy, Kartik Jasra, Advs. for the Respondent.
[2023] 12 S.C.R. 385
SUNIL v. STATE OF NCT OF DELHI
The Judgment of the Court was delivered by
MANOJ MISRA, J.
1. These three appeals are against the judgment and order of the
High Court of Delhi (in short “the High Court”) dated 28.07.2009
passed in Criminal Appeal Nos. 962 of 2004; 977 of 2004; 981 of
2004; 14 of 2005; and 61 of 2005, by which Criminal Appeal Nos.
962 of 2004; 977 of 2004; 981 of 2004; and 61 of 2005, preferred
by Sunil (appellant in Criminal Appeal No.688 of 2011), Shri Krishna
(appellant in Criminal Appeal No.785 of 2011), Ravinder (appellant
in Criminal Appeal No.689 of 2011) and Babu Ram @ Fauji (coaccused), respectively, were dismissed whereas Criminal Appeal
No.14 of 2005 of co-accused Vijay was allowed. The net result of
the impugned judgment and order is that the order of the trial court
(i.e., Court of Additional Sessions Judge, Delhi), dated 08.11.2004,
in Sessions Trial No.42 of 1999, arising out of FIR No.561 of 1998,
P.S. Jahangir Puri, convicting and sentencing Babu Ram @ Fauji,
Sunil, Shri Krishan and Ravinder under Sections 302/307/34 of the
Indian Penal Code (in short, “the I.P.C.”) has been affirmed whereas
conviction of co-accused Vijay has been set aside. It be noted that
Babu Ram @ Fauji was also sentenced under Section 27 of the Arms
Act, which has also been affirmed by the High Court. The sentence
awarded to the appellants, namely, Sunil, Shri Krishan and Ravinder,
which is impugned in these appeals, is as under:
(i) Imprisonment for life with fine of Rs. 2000/-, coupled with a
default sentence of six months R.I., under Section 302/34
I.P.C.; and
(ii) Five years R.I. with fine of Rs. 1000/-, coupled with a default
sentence of three months, under Section 307/34 I.P.C.
Introductory Facts
2. This is a case where, on account of indiscriminate firing by Babu
Ram @ Fauji (non-appellant) from his licensed single barrel gun, two
persons, namely, Anil Kumar and Vijay, suffered gun-shot injuries
and died; and 26 others received pellet injuries, some of them being
grievous in nature.
386 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
3. Babu Ram, who fired the gun shots from his licensed gun, handed
over his gun to the police along with 16 used and 4 live cartridges
while setting up a plea of self-defence. The appellants before us
and Vijay (who has been acquitted by the High Court) were roped
in with the aid of Section 34 of the I.P.C. as persons who exhorted
Babu Ram to fire gunshots.
4. According to the prosecution case, on 11.11.1998, there was tension
in the locality as boys from the accused side had teased daughter
of Lala Satpal. Giving vent to that tension, at about 3.00 pm, an
altercation took place between Satpal and Shri Krishan whose
son Sunil was present. Anil Kumar (one of the two deceased) i.e.,
brother of Mangat Ram (PW-2) took side of Satpal. Babu Ram (nonappellant) and his son Ravinder joined the altercation taking side
of Shri Krishan. Thereafter, Shri Krishan, his son Sunil, Babu Ram
and Babu Ram’s son Ravinder left the place while extending threats
that they would teach Satpal and his supporters a lesson. Soon
thereafter, Babu Ram, Shri Krishan, Ravinder and Sunil appeared on
the roof of PW-2’s house and from there, on the instigation of Shri
Krishan, Sunil and Ravinder, Babu Ram fired shots at the supporters
of Satpal resulting in death of two persons and injuries to as many
as 26 persons.
5. As, according to the prosecution, genesis of the incident was a
dispute between two families on account of young male members of
one family (i.e., of Sri Krishan) teasing female members of the other
(i.e., family of Satpal), the relationship of accused persons inter se
assumes importance, which is as below:
(i) Shri Krishan is the husband of Babu Ram’s sister;
(ii) Sunil is son of Shri Krishan;
(iii) Ravinder is son of Babu Ram; and
(iv) Vijay (already acquitted) is a distant relative of Shri Krishan.
6. To prove its case, the prosecution examined 56 witnesses. On the
other hand, the appellants including Babu Ram examined 15 defence
witnesses. As Babu Ram took the plea of self-defence, the trial court
as well as the High Court examined his defence plea in detail. The
defence plea taken by Babu Ram was that a mob had surrounded
[2023] 12 S.C.R. 387
SUNIL v. STATE OF NCT OF DELHI
his house and threatened to torch it. Therefore, to disburse the
mob, shots were fired. This defence was carefully examined by the
trial court as well as the High Court with reference to the site plan
and the evidence led. After examining the same, it was found that
persons who died including those who received injuries were on
Street No. 300 whereas the house of Babu Ram had no opening
on Street No. 300. Rather, its opening was on Street No. 400. The
High Court noticed that even the back wall of the house of Babu Ram
did not abut Street No. 300 where the incident occurred. Not only
that, the evidence brought on record established that gunshots were
fired from the roof-top of Mangat Ram’s house (i.e. House No.354)
upon persons who were standing or moving on Street No.300. In
this scenario, the defence plea was found unacceptable and was
therefore discarded by the trial court as well the High Court. Detailed
reasons in that regard can be found in paragraphs 45 to 57 of High
Court’s judgment, extracted below:
“45. In our opinion there is hardly much scope for raising a dispute
pertaining to the defence of Babu Ram of having acted in self-defence.
The defence is a sham.
46. The site plan, Ex.PW-56/A, prepared by Inspector Sajan Singh
and the site plan to scale Ex.PVJ-7/A prepared by Tirath Raj Singh
PW-7, to which we have made a detailed reference in para 11 above,
show that deceased Vijay and Anil were shot dead at street No.300.
Mangat Ram PW-2 also was shot at in street No.300. PW-8, PW-9,
PW-13, PW-14, PW-15 and PW-27 have categorically stated that
they received the gunshot injuries when they were in street No.300.
These witnesses may be related to the two young boys who were shot
dead as also to Mangat Ram, the complainant, but said fact alone
would not render suspect their testimonies. The said six witnesses
are all residents of block-D and have their houses on gali No.300 and
thus their presence at the spot is natural. That all of them received
gunshot wounds itself establishes their presence at the spot. A
related witness is not an interested witness on account of being the
relation of the complainant. An interested witness is one who has a
motive to secure the false conviction of the accused and to achieve
the same deposes falsely. As held in the decision reported as State
of Rajasthan v. Smt Kalki & Anr (1981) 2 SCC 752:-
388 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
“As mentioned above, the High Court has declined to rely on
the evidence of P.W.I on two grounds: (1) she was a “highly
interested” witness because she “is the wife of the deceased”,
and (2) there were discrepancies in her evidence. With
respect, in our opinion, both the grounds are invalid. For, in the
circumstances of the case, she was the only and most natural
witness; she was the only person present in the hut with the
deceased at the time of the occurrence, and the only person who
saw the occurrence. True, it is she is the wife of the deceased;
but she cannot be called an ‘interested’ witness. She is related
to the deceased. ‘Related’ is not equivalent to ‘interested’. A
witness may be called ‘interested’ only when he or she derives
some benefit from the result of a litigation; in the decree in a
civil case, or in seeing an accused person punished. A witness
who is a natural one and is the only possible eye witness in
the circumstances of a case cannot be said to be ‘interested’.
In the instant case P.W. 1 had no interest in protecting the real
culprit, and falsely implicating the respondents.”
47. Besides, the other prosecution witnesses namely PW-17, PW23, PW-29, PW-30, PW-33, PW-34, PW-35, PW-36, PW-37, PW-38,
PW-39, PW-40, PW-41. PW-42, PW-43, PW-44 · and PW-46 are
not related to the deceased or Mangat Ram. Said witnesses have
deposed that they received gunshot wounds on 11.11.1998 at around
3/3:30 PM. Out of said 17 witnesses, PW-23, PW-29, PW-33, PW-37,
PW-38, PW-39, PW-40, PW-41, PW-42, PW-43, PW-44 and PW-46
have categorically deposed that they were present at Gali No.300
when they received the gunshot wounds. The other witnesses have
not stated as to where they were standing when they received the
gunshot wounds. PW-23, PW-29, PW-33, PW-37, PW-38, PW-39,
PW-40, PW-41, PW-42, PW-43, PW-44 and PW-46 are not related
to each other or to the deceased or to any other witness of the
prosecution, They would have no motive to falsely depose. The
testimony of said witnesses establishes that the firing was directed
towards people who were on street No.300. The house of Babu Ram
is abutting street No.400, which as noted in para 11 above, runs
parallel to street No.300 and the two streets are separated by a row
of houses constructed back to back. In no way can an unruly crowd
which has assembled on street No.300 set on fire any house which is
[2023] 12 S.C.R. 389
SUNIL v. STATE OF NCT OF DELHI
on street No.400. Further, the falsity in the testimony of the defence
witnesses who claim that Babu Ram, acting in defence of his house
and himself and his family members, fired from the roof of his house
is apparent from the fact that standing on the roof of house No.366
which is the house of Babu Ram, it is just not possible to hit anybody
standing on street No.300. A little bit of geometry would show the
same. Standing on any point at the roof of the house of Babu Ram,
the straight line connecting the said spot from any portion of his roof
to any spot on street No.300 would pass through the roof· and the
walls of house No. D-355, D-356 and D-357 abutting street No.300
on its northern boundary.
48. Besides, there is no evidence of any kerosene oil or petrol being
detected outside the house of Babu Ram. This also falsifies the
defence version that the riotous mob was threatening to burn down
the house of Babu Ram.
49. No doubt, FIR Ex.PW-19/D-3 has indeed been registered at 9:10
PM which evidences rioting in D-Block, Jahangir Puri, but therefrom
it does not stand proved that the defence version is correct. It is
also true that photographs of the house of Babu Ram show that
the door of his house has been broken and brick bats have been
thrown towards his house.
50. What has happened is evident. After Babu Ram fired
indiscriminately and shot dead two persons on the street and injured
26 more on the street i.e. street No.300, it was apparent that the
crowd retaliated. The site plan Ex.PW-7/A shows that the houses on
the streets of D-Block Jahangir Puri have a front of 10’ and a depth
of 23’.10”. Jahangir Puri is a resettlement colony where slum dwellers
have been relocated. Tiny plots ad measuring 10’ x 23’.10” have
been allotted to the rehabilitated slum dwellers by the government.
The population density in the colony is extremely heavy. Huge
crowds can gather in densely populated areas within seconds. It is
apparent that the angry crowd sought vengeance against Babu Ram
after Babu Ram had created mayhem in the area. That 16 rounds
were fired by Babu Ram is not disputed by him. By no stretch of
imagination can firing of 16 rounds be belittled. If a man fires 16
rounds on a crowd causing death of 2 and injuring 26 others, the
crowd is bound to retaliate.
390 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
51. From the evidence of the witnesses of the prosecution it is
apparent that some quarrel regarding eve teasing had taken place
on street No.300 involving the families of Satpal and accused Shri
Kishan who is the brother-in-law of Babu Ram. Even the defence
witnesses have spoken of an ‘eve-teasing incident. The difference
is, as per the defence witnesses the victim of the eve teasing
incident was Seema, the daughter of Shri Kishan and as per the
prosecution witnesses the aggressors were the family members of
Shri Kishan. There is commonality in the testimony of both sets of
witnesses that Babu Ram left street No.300 taking along with him
his sister Sushila and Seema. The difference in the two versions
is regarding the presence of the co-accused. As per the witnesses
of the prosecution, some of them have spoken of all co-accused
being present at street No.300, with some excluding the presence
of co-accused Vijay. It is thus apparent that whatever be the cause
of the spat on the public street, Babu Ram retrieved himself safely
from the street and reached his house.
52. We have already discounted the defence version, in view of
evidence on record, of the crowd following Babu Ram and surrounding
his house. We have already held that the evidence establishes
indiscriminate firing by Babu Ram on the persons in street No.300
and the fact that his house abuts street No.400 evidences that the
firing was not to scare the crowd which had surrounded the house
of Babu Ram. We have already held that for anyone to be standing
on street No.300 it is just not possible to set on fire any house on
street No.400. We have already held that by standing on any spot
on the roof of Babu Ram’s house it was just not possible to shoot
any person on street No.300.
53. The inevitable conclusion is, that as claimed by the witnesses
of the prosecution, Babu Ram jumped from the roof of his house
on to the roof of House No.D-354 of Mangat Ram and standing
at the roof of Mangat Ram’s house at the spot marked ‘4’ on the
site plan Ex.PW-7/A, indiscriminately fired 16 shots, all directed
downwards on the persons in street No.300, with specific targets
being Mangat Ram and his family members against whom Babu
Ram had a grievance of being the sympathizers of Lala Satpal.
[2023] 12 S.C.R. 391
SUNIL v. STATE OF NCT OF DELHI
54. Besides, the right of self-defence is a self-limiting right and
authorizes the person acting in self-defence to use only such force
which is reasonable and commensurate with the danger to body
or to property. No doubt, defence of a dwelling house stands on a
different footing and law has always looked with special indulgence
on a man who is defending his dwelling against those who try to
unlawfully evict him, for: the house of everyone is to him as his
castle and fortress.
55. The indiscriminate firing by Babu Ram cannot be justified under
any circumstances.
56. The testimony of the witnesses of the prosecution and the defence,
though with a difference qua the origin of a spat on the public street,
establishes a public spat on a public street involving the families of Sri
Krishan and Lala Satpal. The evidence, as held above, establishes
that Babu Ram fired from the roof of the house of Mangat Ram and
targeted people on street No.300 where the spat between the family
members of Shri Krishan and Lala Satpal took place. It is apparent
that Babu Ram was led into firing because he learnt of the quarrel
going on in street No.300. It is obvious that Babu Ram had come to
aid of his sister and his brother-in-law. It is obvious that Babu Ram
has acted with vengeance and not to protect himself or his house.
It is not the case of Babu Ram that his sister’s house or the family
members of his sister who were on street No.300 were in danger
and he did the firing to protect them.
57. Looked from any angle whatsoever, Babu Ram cannot escape
the consequence of his acts.”
7. As far as co-accused Vijay is concerned, the High Court allowed his
appeal by giving him the benefit of doubt as only one witness had
alleged about his participation.
8. In respect of the appellants Sunil, Shri Krishan and Ravinder, the
High Court observed that Mangat Ram (PW-2), Ashok Kumar (PW8), Kashmere Lal (PW-9), Darshana (PW-13), Raj Kumar (PW-14)
and Sushil Kumar (PW-15), who were all injured in the firing, have
categorically deposed that those accused were present with Babu
Ram at the time of altercation and they all left simultaneously with
Babu Ram and were noticed at the roof top exhorting Babu Ram
392 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
to fire. The High Court observed that though there had been minor
variations in the testimony of witnesses as to which accused did
what, but such minor variations were natural as memory fades with
passage of time and it is difficult for anyone to remember each and
every minute aspect of the incident. Consequently, by relying on
their testimony, all appeals were dismissed.
9. We have heard Sri Sudarshan Rajan, learned counsel for the
appellants and Shri Jayant K. Sud, learned Additional Solicitor
General, for the State (NCT of Delhi).
Submissions on behalf of appellants
10. The learned counsel for the appellants submitted that it is a case
where the principal accused, namely, Babu Ram, had admitted that
he opened fire at the mob from his licensed weapon. Once such is
the position, the court was required to carefully consider whether the
appellants, who were part of the family, were implicated due to general
animosity, by assigning role of exhortation to them. Further, as per
prosecution case, gunshots were fired from the roof-top at people
who were on the street. It would thus be difficult for the witnesses
present on the street to gauge as to who was exhorting and who
was not, particularly, when there were more than three persons at
the roof-top. Moreover, it is well settled that mere presence with the
assailant is not enough to assume that all of them share common
intention with the principal accused and that the criminal act has
been done in furtherance of the common intention of all. Otherwise
also, the prosecution evidence is not clear whether the gunshots fired
at the two deceased i.e., Anil and Vijay were in furtherance of the
common intention of all the accused. Therefore, even if it is assumed
that at some stage the appellants had exhorted Babu Ram to fire
shots, in absence of clear and cogent evidence that Babu Ram was
instigated/exhorted to fire shots at the two deceased, the appellants
cannot be convicted for the offence punishable under Section 302
with the aid of Section 34 of the IPC. Thus, in a worst-case scenario,
the appellants can only be convicted under Section 307/34 of the
I.P.C. It was argued that since each of the three appellants have
already served more than five years of sentence, which they were
awarded for offence punishable under Section 307/34 of the I.P.C.,
their appeals be allowed and their sentence be reduced to the period
[2023] 12 S.C.R. 393
SUNIL v. STATE OF NCT OF DELHI
of sentence already undergone for the offence punishable under
Section 307/34 of the I.P.C.
11. In addition to above, the learned counsel for the appellants submitted
that the trial of the appellants suffers from a fundamental defect
inasmuch as the incriminating circumstance about the appellants
exhorting/instigating Babu Ram to fire shots at the two deceased/
public/injured, was never put to the appellants while recording their
statements under Section 313 of the Code of Criminal Procedure,
1973 (in short, “the Cr.P.C.”). Hence, the incriminating circumstance
appearing in the evidence qua exhortation/instigation of the main
accused by the appellants would have to be eschewed from
consideration.
12. The learned counsel for the appellants cited number of decisions
on two broad propositions, namely,
(A) As to when, based on the role of exhortation, conviction can be
sustained with the aid of Section 34 of the I.P.C. The decisions
cited were:
(i) Balu Alias Bala Subramaniam & Another v. State (UT
of Pondicherry)1
;
(ii) Kulwant Singh alias Kulbansh Singh v. State of Bihar2
,
(iii) Jainul Haque v. State of Bihar3
;
(iv) Hardev Singh & Another v. The State of Punjab4
;
(v) Mewa Ram & Another v. State of Rajasthan5
;
(vi) Mohan Singh & Another v. State of M.P.6
;
(vii) Zahoor & Others v. State of Uttar Pradesh7
;
1 (2016) 15 SCC 471
2 (2007) 15 SCC 670
3 (1974) 3 SCC 543
4 (1975) 3 SCC 731
5 (2017) 11 SCC 272
6 (1999) 2 SCC 428
7 (2011) 15 SCC 218
394 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
(viii) Bishnupada Sarkar & Another v. State of West Bengal8
.
(B) Incriminating circumstances not put to the accused while
recording his statement under Section 313 of the Cr.P.C. must
be eschewed from consideration. The decisions cited were:
(i) Hate Singh v. State of Madhya Bharat9
;
(ii) Sujeet Biswas v. State of Assam10;
(iii) Sharad Birdichand Sharda v. State of Maharashtra11;
(iv) Samsul Haque v. State of Assam12; and
(v) Maheshwar Tigga v. State of Rajasthan13.
Submissions on behalf of the State
13. On behalf of the State (NCT of Delhi) it was submitted that, as per
the evidence, after the altercation, Babu Ram left the place with the
appellants while extending threats that they shall teach a lesson to
the other side and their supporters. Soon thereafter, they all appeared
at the roof top and the appellants were noticed exhorting Babu Ram
to attack the other side and their supporters. Gunshots were fired
in furtherance thereof, causing death of two persons and injuries to
26 others. In such circumstances, all the accused exhibited common
intention to cause such bodily injury to persons which they knew it
is likely to cause death of the person to whom it is caused. Further,
multiple gunshots were fired. Therefore, it is a clear case that the
appellants who exhorted the assailant had shared common intention
with him.
14. Regarding the incriminating circumstance of exhortation being not
put to the accused appellants while recording their statements under
Section 313 CrPC, it was submitted that even if it was not put to
them, they suffered no prejudice, which is clear from the following
8 (2012) 11 SCC 597
9 AIR 1953 SC 468
10 (2013) 12 SCC 406
11 (1984) 4 SCC 116
12 (2019) 18 SCC 161
13 (2020) 10 SCC 108
[2023] 12 S.C.R. 395
SUNIL v. STATE OF NCT OF DELHI
circumstances: (a) the appellants were throughout represented
by their counsel; (b) the statement of witnesses was recorded in
presence of the appellants/their counsel; (c) their counsel specifically
cross-examined the witnesses in respect of their statement qua
exhortation by the appellants; and (d) the FIR of the incident, which
disclosed their role as that of an instigator, was put to them. It could,
therefore, be taken that they were fully aware of the incriminating
circumstances appearing against them in the prosecution evidence.
Yet, they took no plea before the trial court or the High Court of any
kind of prejudice caused to them. Thus, this plea, raised for the first
time before this Court, ought not be entertained.
15. In support of his submissions, the learned counsel for the State cited
decisions on two broad propositions, namely,
(a) Conviction with the aid of Section 34 of the I.P.C can be recorded
for the role of exhortation. The decisions cited were:
(i) Gulab v. State of Uttar Pradesh14; and
(ii) Sandeep v. State of Haryana15
(b) Unless prejudice is shown to have been caused to the accused,
failure to put any incriminating circumstance, by itself, would
not vitiate the trial. The decisions cited were:
(i) Nar Singh v. State of Haryana16;
(ii) Alister Anthony Pareira v. State of Maharashtra17; and
(iii) Satyavir Singh Rathi, ACP & Others v. State18.
Discussion and Analysis
16. We have considered the rival submissions and have perused the
record carefully. Before we deal with the submissions, it would be
useful to recapitulate facts which have been found proved, and
regarding which there is no serious dispute, namely,
14 (2022) 12 SCC 677
15 2021 SCC Online SC 642
16 (2015) 1 SCC 496
17 (2012) 2 SCC 648
18 (2011) 6 SCC 1
396 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
(a) The incident had its genesis in an altercation between two
families i.e, Sri Krishan’s family on one side and Satpal’s
family on the other. The reason for the altercation was one
family accusing the other of their girls being teased by other
family’s boys.
(b) All gunshots which caused injuries to the two deceased as well
as to twenty-six others, were fired by Babu Ram (non-appellant)
who has been convicted and sentenced under Section 302 of
the I.P.C.
(c) The gun which Babu Ram used to fire shots was licensed to him.
(d) Babu Ram was present at the time when altercation between
the two sides took place.
(e) Babu Ram is brother-in-law of Shri Krishan.
(f) Babu Ram’s house opens on Street No. 400 whereas Satpal’s
house opens on Street No.300. Though exact location of Shri
Krishan’s house is not disclosed in the site plan prepared in
connection with the case, however, from his address, which is
disclosed as D-291, Jahangir Puri, Delhi, it appears that his
house is near Satpal’s house (which is D-294), and on same
Street No.300.
17. The place where the incident took place is a congested colony. The
location of the two Streets i.e., Nos. 300 and 400 and the houses
in between them has been described in detail in paragraph 11 of
the High Court’s judgment, the correctness of which has not been
seriously challenged. Thus, to have a clear picture of the spot,
we deem it appropriate to extract paragraph 11 of the impugned
judgment below:
“11. As per the two site plans, street No.400 and street No.300 in D
Block Jahangir Puri, run parallel to each other along the west-eastern
directions. Street No.400 is towards the north and street No.300 is
towards the south. The width of street No.400 is 16‟.6”. The width
of street No.300 is 15‟.10”. The distance between the two streets is
47‟.8”. This distance between the two streets is not an empty space
but consists of a row of houses having a depth of 23‟.10”. To make
it clear, one row of houses being House No.361 to 368 have a depth
[2023] 12 S.C.R. 397
SUNIL v. STATE OF NCT OF DELHI
of 23‟.10” and these houses abut street No.400. Back to back to
these houses are a row of houses bearing No.353 to 359 with each
house having a depth of 23‟.10”. These houses open towards street
No.300. Opposite to the row of houses bearing No.353 to 359 on
street No.300 are house Nos.298 to 293. It is apparent that the doors
of house No.353 to 359 open in the southern direction on to street
No.300 and the doors of house Nos.298 to 293 open towards the
northern direction on to street No.300. On the site plan, the spots
where Anil and Vijay were shot at have been marked 1 and 2. They
are at a distance of 3‟.6” and 3‟ respectively from the boundary wall
of house No.295 and house No.294. Spot where Mangat Ram was
shot at is shown at point No.3 which is also at a distance of about
3‟ from the boundary wall of house No.297. The spot wherefrom
Babu Ram is stated to have fired is shown as spot No.4 and is on
the roof of house No.354 belonging to Mangat Ram. The site plan
shows that house No.366 of Babu Ram is back to back with house
No.355 of Ramesh Chand and house No.354 of Mangat Ram is
adjacent to the house of Ramesh Chand towards the west of house
of Ramesh Chand. … ”.
18. From the observations of the High Court extracted above, what
transpires is that in between Street Nos.300 and 400 there are two
rows of houses, back to back. One row of houses have their opening
towards north on Street No.400, whereas the other have their opening
towards south on Street No.300. The third row of houses, south of
Street No. 300, have their opening towards north on Street No.300.
Satpal’s house is in that row, whereas Babu Ram’s house is towards
north, opening on Street No.400.
19. As per the evidence, altercation preceding the incident of firing took
place on Street No.300. After the altercation, Babu Ram left that
place, went to his house on Street No.400, fetched his gun and fired
shots at the public present on Street No.300 from roof of one of the
row houses, which, according to the prosecution, is house of Mangat
Ram. A close scrutiny of the site plan would suggest that the place
where gunshot injuries were suffered could not have been targeted
if gunshots had been fired from the roof top of Babu Ram’s house.
Therefore, both the courts below disbelieved Babu Ram’s plea that
he fired gunshots in self-defence to disburse the crowd which had
surrounded his house.
398 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
Role of the Appellants
20. Now, we shall examine the evidence as regards the role of the
appellants. Before we do that, it would be pertinent to note that
the two deceased, namely, Anil and Vijay, are not related to Satpal,
the person with whom Shri Krishan and his family (i.e., the accused
side) had an altercation. Therefore, to show that all the accused had
a common intention to cause bodily harm to persons who suffered
injuries including the ones who succumbed to the injuries, prosecution
has used a word Himayati (i.e., supporter) of Satpal to describe the
victims. And to bring home the charge against the appellants, the
prosecution case is that all the accused persons exhibited common
intention as they simultaneously left the place where altercation was
taking place to go to Babu Ram’s residence to pick up the gun. Not
only that, they appeared together at the roof-top when shots were
fired on Satpal’s supporters.
Some of the testimonies in respect of appellants’ role
21. PW-2 (Mangat Ram), brother of deceased Anil, stated that Shri
Krishan, his son Sunil, Babu Ram and his son Ravinder after
altercation left the spot threatening Lala Satpal and his supporters
that they would be taught a lesson; soon thereafter, all of them came
to the roof of Babu Ram’s house and then jumped on to the roof of
PW-2’s house, which shares back wall with Babu Ram’s house; and
from there, Babu Ram opened fire while appellants were exhorting
him not to spare Satpal or anyone who had supported him.
22. PW-9, Kashmere Lal, gives a more lucid account of the incident.
He states that on 11.11.1998, at about 3 pm, while he was in his
house, altercation started between Satpal and Shri Krishan over some
incident relating to teasing of Satpal’s daughter. In the meantime,
Sunil came and so did Babu Ram and his son. They started shouting
that they would not spare the people of the Gali (street) as they have
harassed Shri Krishan. Thereafter, all four accused left extending
threats. Soon thereafter, they appeared at the roof of Babu Ram’s
house. Then Babu Ram started firing. The first shot hit Anil. Second
shot hit right leg of Mangat Ram. Thereafter, Babu Ram fired
indiscriminately, and many people received pellet injuries. When
Babu Ram was firing indiscriminately, the other accused, namely,
[2023] 12 S.C.R. 399
SUNIL v. STATE OF NCT OF DELHI
Sunil, Shri Krishan and son of Babu Ram, were instigating Babu
Ram not to spare any of Satpal’s Himayati (supporter).
23. PW-8 Ashok Kumar, father of deceased Vijay, tried to be specific
about the sequence of events. He stated that accused Fauji @ Babu
Ram first fired a shot in the air from his gun; then accused shouted
that they would not spare anyone; thereafter, Shri Krishan and Sunil
told Fauji to fire at persons whom they point at; Ravinder and Vijay
also shouted that no one should be spared; simultaneously other
accused also told Fauji to fire at persons whom they point at, so
that no madadgar (i.e., supporter) of Satpal is spared; then Fauji
fired, a bullet hit Anil @ Kala, the deceased, as also Mangat Ram;
thereafter, accused Sunil and Ravinder pointed towards PW-8’s son
Vijay and exhorted Fauji to fire at him; in consequence, Fauji fired at
PW-8’s son, the shot hit him and he died; whereafter, Fauji started
firing indiscriminately resulting in injuries to several persons.
24. During cross-examination, Ashok Kumar (PW-8) stated that,-- he had
witnessed the altercation; after the accused left, he went behind them;
he, however, did not notice if any of his relatives were near the place
of altercation; the accused went towards Babu Ram’s house whereas
he went to his own house; after reaching his house, he put on his
shoes, then, after 4/5 minutes, he heard gun shots; he immediately
came out of his house to notice people running helter-skelter; the
firing continued for about 20/25 minutes; he did not sustain any injury
and no pellet came towards his house; he had no enmity with the
accused prior to the incident, rather they had been attending each
other’s functions; accused had cordial relations with the deceased
Vijay; he had never appeared as a witness against the accused in
any other case nor made any complaint against them; he and his
family never favoured Satpal; his elder son, besides the deceased
Vijay, was in the house at that time.
25. At this stage, we may observe that Mangat Ram (PW-2) (i.e. brother
of the deceased Anil) too, was not aware of any kind of animosity
between any of the accused and Anil. There is no clarity in PW2’s statement about Anil taking side of Satpal while he was in an
altercation with Shri Krishan. In fact, during cross-examination,
PW-2 stated that,-- the altercation took place at a distance of about
10-12 paces from the place where he was lying on his cot; at that
400 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
time, Sushil (his other brother) and Anil (the deceased) were inside
the house; at the time of altercation between Lala and Shri Krishan,
Ravinder, Vijay and Babu were not there; Babu Ram arrived at
the place of altercation at about 2.45 pm and stayed for about 10
minutes; he cannot say as to how many persons came there; he
cannot tell as to how many persons remained with Satpal, when Babu
Ram left. PW-2 specifically added that neither he nor his brother
Anil were supporter of anyone. He, however, clarified that he saw
accused standing on the roof, five minutes after they left the place of
altercation. He also added that from the place where he was lying
on the cot, Babu Ram could not be seen. Further, he could not tell
as to how many minutes the firing continued as he, and his brother,
sustained injuries and wer removed to the Hospital. In respect of
the role played by the appellants, PW-2 stated that his brother Anil
was coming from the other side, when Babu Ram was instigated to
fire at him. PW-2 clarified that neither he nor Anil had any previous
enmity with Babu Ram or any other accused person and that neither
he nor his brother ever supported Lala Satpal.
26. A close examination of the statement of these witnesses would reveal
that, though they disclose the presence of the accused-appellants
with Babu Ram at the roof-top as also that they were instigating Babu
Ram not to spare the supporters of Satpal, they are not specific and
consistent about the two deceased (i.e., Anil and Vijay) being targeted
by Babu Ram at the instigation of the present appellants. Absence of
cogent evidence that Babu Ram was instigated/exhorted to fire shots
at the two deceased assumes importance as, from the testimony of
these witnesses, neither Vijay nor Anil was a supporter of the rival
faction i.e., Satpal with whom the accused party had animosity. In
such circumstances, the question that would arise is whether for the
murder of the two deceased, namely, Vijay and Anil, could it be said
that the appellants shared a common intention with the assailant
Babu Ram so as to warrant their conviction under Section 302 I.P.C.
with the aid of section 34 I.P.C.
Whether based on the evidence led, the appellants could be convicted
for the offence of murder of Anil and Vijay with the aid of Section
34 I.P.C. or only for the offence punishable under Section 307 I.P.C.
read with 34 I.P.C.
[2023] 12 S.C.R. 401
SUNIL v. STATE OF NCT OF DELHI
27. Before we dwell on the aforesaid issue, it would be useful to examine
the law as to when conviction with the aid of Section 34 of the
I.P.C. could be made. In Pandurang, Tukia and Bhillia v. State of
Hyderabad19, this Court observed:
“33. Now in the case of Section 34 we think it is well established
that a common intention presupposes prior concert. It requires a prearranged plan because before a man can be vicariously convicted
for the criminal act of another, the act must have been done in
furtherance of the common intention of them all: Mahbub Shah v.
King-Emperor. Accordingly there must have been a prior meeting
of minds. Several persons can simultaneously attack a man and
each can have the same intention, namely the intention to kill, and
each can individually inflict a separate fatal blow and yet none would
have the common intention required by the section because there
was no prior meeting of minds to form a pre-arranged plan. In a
case like that, each would be individually liable for whatever injury
he caused but none could be vicariously convicted for the act of any
of the others; and if the prosecution cannot prove that his separate
blow was a fatal one he cannot be convicted of the murder however
clearly an intention to kill could be proved in his case: Barendra
Kumar Ghosh v. King- Emperor and Mahbub Shah v. King-Emperor.
As their Lordships say in the latter case, “the partition which divides
their bounds is often very thin: nevertheless, the distinction is real
and substantial, and if overlooked will result in miscarriage of justice.
34. The plan need not be elaborate, nor is a long interval of
time required. It could arise and be formed suddenly, as for example,
when one man calls on bystanders to help him kill a given individual
and they, either by their words or their acts, indicate their assent to
him and join him in the assault. There is then the necessary meeting
of the minds. There is a pre-arranged plan however hastily formed
and rudely conceived. But pre-arrangement there must be and
premeditated concert. It is not enough, as in the latter Privy
Council case, to have the same intention independently of each
other, e.g., the intention to rescue another and, if necessary, to
kill those who oppose.”
(Emphasis supplied)
19 AIR 1955 SC 216
402 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
28. In Balu alias Bala Subramaniam1, this Court held:
“11. To invoke Section 34 IPC, it must be established that the criminal
act was done by more than one person in furtherance of common
intention of all. It must, therefore, be proved that: (i) there was common
intention on the part of several persons to commit a particular crime,
and (ii) the crime was actually committed by them in furtherance
of that common intention. The essence of liability under Section
34 IPC is simultaneous conscious mind of persons participating in
the criminal action to bring about a particular result. Minds regarding
the sharing of common intention gets satisfied when an overt act is
established qua each of the accused. Common intention implies
pre-arranged plan and acting in concert pursuant to the prearranged plan. Common intention is an intention to commit the
crime actually committed and each accused person can
be convicted of that crime, only if he has participated in that
common intention.”
(Emphasis supplied)
After observing as above, in paragraph 15, it was observed:
“15. Under Section 34 IPC, a pre-concert in the sense of a distinct
previous plan is not necessary to be proved. The common intention
to bring about a particular result may well develop on the spot as
between a number of persons, with reference to the facts of the case
and circumstances of the situation. The question whether there
was any common intention or not depends upon the inference
to be drawn from the proven facts and circumstances of each
case. The totality of the circumstances must be taken into
consideration in arriving at the conclusion whether the accused
had a common intention to commit an offence with which they
could be convicted.”
(Emphasis Supplied)
29. What is clear from the decisions noticed above is, that to fasten liability
with the aid of Section 34 of the I.P.C. what must necessarily be
proved is a common intention to commit the crime actually committed
and each accused person can be convicted of that crime, only if it
is in furtherance of common intention of all. Common intention pre-
[2023] 12 S.C.R. 403
SUNIL v. STATE OF NCT OF DELHI
supposes a prior concert, though pre-concert in the sense of a distinct
previous plan is not necessary as common intention to bring about
a particular result may develop on the spot. The question whether
there was any common intention or not depends upon the inference
to be drawn from the proven facts and circumstances of each case.
The totality of the circumstances must be taken into consideration
in arriving at the conclusion whether the accused had a common
intention to commit an offence with which they could be convicted.
30. In Mewa Ram & Another5, the accused appellant had exhorted to
kill the complainant, but the person killed was someone else. There
was no evidence to indicate that the accused-appellant had stated
anything about killing the deceased. In that backdrop, this Court
while holding that the accused-appellant could not be convicted
with the aid of Section 34 of the I.P.C., by placing reliance on earlier
decisions of this Court, observed:
“12. What is to be noticed from the aforesaid is that exhortation
given by appellant Mohan Lal was to kill complainant Harbans Singh.
There is no evidence, apart from the said exhortation which has
been produced by the prosecution to show that the appellant Mohan
Lal had stated anything about the killing of the deceased Deputy
Singh. This is the fundamental mistake committed by the Trial Court
and repeated by the High Court in using the said exhortation on the
part of Mohan Lal insofar as killing of Deputy Singh is concerned.
Under what circumstances, Deputy Singh was shot at by Mewa Lal
is not discernible from the record when the dispute was between the
two brothers (appellants-herein) on the one hand and complainant
Harbans Singh on the other. On these facts, it cannot at all be said
that there was any common intention of the accused persons to kill
Deputy Singh.
13. It is noticed that there is fundamental difference between common
intention and joint intention. Section 34 of the I.P.C. talks of common
intention which is an intention to commit the crime actually committed
and each accused person can be convicted of that crime, only if
he has participated in that common intention and to fasten with the
same liability as that of the main accused who was perpetrator of
the crime.”
404 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
31. Reverting to the case at hand, when we examine the facts of this
case, we notice that the two deceased were Anil and Vijay. The
accused party had no animosity or grudge qua them (i.e., the two
deceased). The prosecution evidence is that all the four accused left
together from the place where altercation had occurred and soon all
of them were seen at the roof-top of PW-2’s house from where Babu
Ram opened fire with a view to teach a lesson to those who had
supported the rival faction. Neither PW-2 nor PW-8, whose brother
and son, respectively, had died, stated that the two deceased had
supported Satpal (i.e., the rival group). Rather, according to them,
the two deceased had no enmity with any of the accused persons.
Further, statements of witnesses are not consistent as to establish
beyond reasonable doubt that the appellants had exhorted Babu Ram
to fire shots at Anil or Vijay i.e., the two deceased. The evidence,
which is consistent, is about exhorting Babu Ram not to spare
Satpal’s supporters. But there is no evidence that the two deceased
were Satpal’s supporters. In our view, that general exhortation is
not sufficient to fasten them with vicarious liability for shots fired by
Babu Ram at the two deceased, particularly, when the testimony of
witnesses is not consistent whether the two deceased were shot
before or after the exhortation made by the appellants. However,
what is certain from the evidence is, that the assailant Babu Ram
had the gun as well as motive to use it, inasmuch as his relative
Shri Krishan was insulted during altercation. Moreover, Babu Ram
had taken a vow to teach supporters of the other side a lesson. In
that kind of a scenario, even if Babu Ram had not been instigated
by any of the other accused, he might have fired from his weapon
to stamp his authority and, therefore, killing of the two deceased
could be his own individual act for which he alone would be liable. In
these circumstances, to clinch a conviction of the appellants for the
murder of the two deceased with the aid of Section 34 of the I.P.C.,
the prosecution was required to lead clear and cogent evidence that
the shots fired by Babu Ram at the two deceased were in furtherance
of common intention of all. In absence whereof, as is in the case
at hand, in our considered view, it would be extremely unsafe to
convict the appellants with the aid of Section 34 of the I.P.C. for the
offence of murder.
[2023] 12 S.C.R. 405
SUNIL v. STATE OF NCT OF DELHI
32. Now, the question that falls for our consideration is whether the
appellants could escape their liability for the offence punishable under
Section 307 with the aid of Section 34 of the I.P.C. In our view, the
answer to it would depend on whether the appellants including Babu
Ram committed any one or more of the acts specified in Section
300 of the I.P.C.20 in furtherance of common intention of all, had the
person(s) injured succumbed to their injuries.
33. The evidence in the instant case is that indiscriminate firing continued
for long, some say for 20 to 25 minutes. As many as twenty-six
persons on Street No.300 received pellet injuries. Notably, 16
empty cartridges were seized from Babu Ram. Evidence is that the
appellants were with the accused Babu Ram, exhorting him not to
spare Satpal’s supporters, and pointing at targets. Though, evidence
might not be specific as to who in particular was targeted at the
behest of the appellants but the very fact that indiscriminate firing
continued for long, say 20-25 minutes and the appellants were found
present and exhorting Babu Ram to fire, in our view, it could be said
with certainty that the appellants had knowledge that the act which
Babu Ram was exhorted to commit was so imminently dangerous
that it must, in all probability, cause death or such bodily injury as
is likely to cause death of a person (See Section 300 (Fourthly) of
the I.P.C along with illustration (d) thereto). Therefore, the gunshots
20 “300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention of causing death, orSecondly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused, orThirdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to
be inflicted is sufficient in the ordinary course of nature to cause death, orFourthly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any
excuse for incurring the risk of causing death or such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him
with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although
the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a
sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as
would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may
intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury
as in the ordinary course of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary
course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to
cause Z’s death.
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of
murder, although he may not have had a premeditated design to kill any particular individual.”
406 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
fired by Babu Ram at several by-standers/supporters of Satpal, if
not all, could be said to be a criminal act done by several persons
in furtherance of the common intention of all. A fortiori, even though
it might not be safe to hold the appellants vicariously liable for the
offence of murder of the two deceased persons for the reasons
already detailed above, but looking at the nature of the incident, the
number of persons injured and the role attributed to the appellants,
we are of the considered view that the appellants are liable to be
convicted for the offence punishable under Section 307 with the aid
of Section 34 of the I.P.C. Thus, in our considered view, the finding
of the courts below to that extent does not call for any interference.
Effect of not putting the incriminating circumstance of exhortation
to the appellants while recording their statements under Section 313
of the Criminal Procedure Code, 1973.
34. The question that now falls for our consideration is whether, on
account of not putting the incriminating circumstance of exhortation
to the appellants while recording their statements under Section
313 CrPC, appellants’ conviction with the aid of Section 34 of the
I.P.C. stood vitiated.
35. A perusal of the record would reflect that all the accused including
the appellants were charged by a common charge framing order
dated 17.01.2001, which reads as under:
“I, R. K. Sharma, Additional Sessions Judge, Delhi do hereby charge
Babu Ram @ Fauji son of Raghuveer Dayal; Shri Krishan son of
Jwala Prasad, Sunil son of Shri Krishan; Vijay son of Lala Ram and
Ravinder son of Babu Ram as under:
That on 11.11.1998 at 3 pm at Gali D-300 near House No. 286,
Jahangir Puri, Delhi within the jurisdiction of P.S. Jahangir Puri,
Delhi you all in furtherance of your common intention did commit
murder of deceased Anil Kumar @ Kala and Vijay by intentionally
killing them and thus committed an offence punishable under Section
302/34 I.P.C.
Secondly, on the said date, time and place, you all in furtherance
of common intention caused injuries to 26 persons, namely, Smt.
Sateshwari, Mangat Ram, Anju, Pradeep, Sunny, Ramdev, Marium,
[2023] 12 S.C.R. 407
SUNIL v. STATE OF NCT OF DELHI
Naim, Zafar, Matluf Ali, Saleem, Zubeda, Raj Kumar, Tarun, Bundu,
Darshana, Mohd. Shahid, Vasudev, Priya Sanjay, Chander Kala,
Mohini Devi, Anwari, Gulsher, Hamid Mohd. and Shahid Ahmed with
such intention and under such circumstances that if by the said injuries
the accused appellants had caused the death of said persons, you
would have been guilty of murder and thus committed an offence
punishable under Section 307/34 I.P.C. and within my cognizance.
And I hereby direct that you all be tried by this court for the said
offence.
Signed
ASJ, Delhi
Dated 17.01.2001”
36. As exemplars, some of the questions that were put to the accused
appellants to elicit their response, under Section 313 CrPC, to the
incriminating circumstances appearing against them in the prosecution
evidence, are being extracted below:
“(i) It is in evidence against you that on 11.11.98 a statement was
made by one Mangat Ram, collectively contained in ruqqa Ex.
PW2/A on which formal FIR was recorded, carbon copy of
which is Ex.PW19/E. What have you to say?
(ii) It is further in evidence against you that on 11.11.1998 at about
3 pm at Gali No.D-300 wali, near House No. 286, Jahangir Puri,
you along with other co-accused in furtherance of common
intention did commit the murder of Anil Kumar @ Kala and Vijay
by intentionally killing them. What have you to say?
(iii) It is further in evidence against you that on the said date, time
and place, you along with your co-accused in furtherance of
common intention caused injuries to 26 persons, namely, Smt.
Sateshwari, Mangat Ram, Anju, Pradeep, Sunny, Ramdev,
Marium, Naim, Zafar, Mutluf Ali, Salma, Zubeda, Raj Kumar,
Tarun, Bundu, Darshana, Mohd. Shahid, Vasudev, Priya
Sanjay, Chander Kala, Mohini Devi, Anwar, Gulshan, Hamid
Mohd. and Shahid Ahmed with such intention and under such
circumstances that if by the said injuries you had caused the
408 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
death of said person, you would have been guilty of murder
and thus committed an offence under Section 307/34 I.P.C.
What have you to say?
(iv) It is further in evidence against you that on the said date,
time and place, co-accused Babu Ram used a firearm while
committing the offences punishable under Section 302/307/34
I.P.C and thus committed an offence u/s 27 of Arms Act. What
have you to say?”
Apart from the incriminating circumstances extracted above, various
other pieces of evidence such as injury reports, recovery memorandums,
autopsy/ medical reports, etc. were put to the accused appellants while
recording their statements under Section 313 CrPC.
37. The appellants denied the incriminating circumstances and stated
that, - they were not present at the spot; they have been falsely
implicated in this case because of being relatives of Sushil and Babu
Ram; there was commotion in the locality, therefore they went to the
house of their relatives to know the truth; there they were detained by
the police and falsely implicated at the instance of the complainant.
38. On perusal of the records pertaining to recording of statement under
Section 313 CrPC, we find that the gist of the testimony of various
witnesses delineating the exact role played by the appellants was not
put to the appellants for the purposes of recording their statement.
However, whether this by itself would vitiate their conviction is a
question which needs determination.
39. In Tara Singh v. State21, this Court had the occasion to deal with the
object of Section 342 of the Criminal Procedure Code, 1898 which
is in pari materia Section 313 CrPC. In that context, speaking for
the Bench, Vivian Bose, J. observed:
“38. The whole object of the section is to afford the accused a fair
and proper opportunity of explaining circumstances which appear
against him. The questioning must therefore be fair and must be
couched in a form which an ignorant or illiterate person will be able
to appreciate and understand. Even when an accused person is
21 AIR 1951 SC 441: 1951 SCC Online SC 49
[2023] 12 S.C.R. 409
SUNIL v. STATE OF NCT OF DELHI
not illiterate, his mind is apt to be perturbed when he is facing a
charge of murder. He is therefore in no fit position to understand the
significance of a complex question. Fairness therefore requires that
each material circumstance should be put simply and separately in a
way that an illiterate mind, or one which is perturbed or confused, can
readily appreciate and understand. I do not suggest that every error
or omission in this behalf would necessarily vitiate a trial because
I am of opinion that errors of this type fall within the category of
curable irregularities. Therefore, the question in each case depends
upon the degree of the error and upon whether prejudice has been
occasioned or is likely to have been occasioned.”
(Emphasis supplied)
40. In Alister Anthony Pareira v. State of Maharashtra22, summarising
the law relating to examination of an accused under Section 313
CrPC, this Court observed:
“61. From the above, the legal position appears to be this: the
accused must be apprised of incriminating evidence and materials
brought in by the prosecution against him to enable him to explain
and respond to such evidence and material. Failure in not drawing
the attention of the accused to the incriminating evidence and
inculpatory materials brought in by prosecution specifically, distinctly
and separately may not by itself render the trial against the accused
void and bad in law; firstly, if having regard to all the questions put
to him, he was afforded an opportunity to explain what he wanted to
say in respect of prosecution case against him and secondly, such
omission has not caused prejudice to him resulting in failure of justice.
The burden is on the accused to establish that by not apprising him
of the incriminating evidence and the inculpatory materials that had
come in the prosecution evidence against him, a prejudice has been
caused resulting in miscarriage of justice.”
(Emphasis supplied)
41. In Nar Singh16, this Court had the occasion to review a series
of decisions and summarise the law as to the courses available
22 (2012) 2 SCC 648
410 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
whenever a plea is raised before an appellate court that there has
been a failure in putting certain incriminating circumstances to the
accused while recording his statement under Section 313 CrPC. In
that context, it was observed:
“30. Whenever a plea of omission to put a question to the accused
on vital piece of evidence is raised in the appellate court, courses
available to the appellate court can be briefly summarised as under:
30.1 Whenever a plea of non-compliance of Section 313 CrPC is
raised, it is within the powers of the appellate court to examine and
further examine the convict or the counsel appearing for the accused
and the said answers shall be taken into consideration for deciding
the matter. If the accused is unable to offer the appellate court any
reasonable explanation of such circumstance, the court may assume
that the accused has no acceptable explanation to offer.
30.2 In the facts and circumstances of the case, if the appellate
court comes to the conclusion that no prejudice was caused or no
failure of justice was occasioned, the appellate court will hear and
decide the matter upon merits.
30.3 If the appellate court is of the opinion that non-compliance
with the provisions of Section 313 CrPC has occasioned or is likely
to have occasioned prejudice to the accused, the appellate court
may direct retrial from the stage of recording the statements of the
accused from the point where the irregularity occurred, that is, from
the stage of questioning the accused under Section 313 CrPC and
the trial Judge may be directed to examine the accused afresh and
defence witness, if any, and dispose of the matter afresh.
30.4 The appellate court may decline to remit the matter to the trial
court for retrial on account of long time already spent in the trial
of the case and the period of sentence already undergone by the
convict and in the facts and circumstances of the case, may decide
the appeal on its own merits, keeping in view the prejudice caused
to the accused.”
(Emphasis supplied)
[2023] 12 S.C.R. 411
SUNIL v. STATE OF NCT OF DELHI
42. In Shobhit Chamar & Another v. State of Bihar23, this Court,
after examining a series of decisions, held that a challenge to the
conviction based on non-compliance of Section 313 CrPC first time
in the appeal before the Supreme Court cannot be entertained
unless the appellants demonstrate that prejudice has been caused
to them. The relevant observations, as contained in paragraph 24,
are extracted below:
“24. We have perused all these reported decisions relied upon by
the learned advocates for the parties and we see no hesitation
in concluding that the challenge to the conviction based on noncompliance of Section 313 CrPC first time in this appeal cannot be
entertained unless the appellants demonstrate that the prejudice
has been caused to them. In the present case as indicated earlier,
the prosecution strongly relied upon the ocular evidence of the
eyewitnesses and relevant questions with reference to this evidence
were put to the appellants. If the evidence of these witnesses is found
acceptable, the conviction can be sustained unless it is shown by
the appellants that a prejudice has been caused to them. No such
prejudice was demonstrated before us and, therefore, we are unable
to accept the contention raised on behalf of the appellants.”
(Emphasis supplied)
43. Building on the observations of this Court in Shobhit Chamar22,
which have been extracted above, in Satyavir Singh Rathi, ACP
& Others18, it was observed:
“77. … These observations proceed on the principle that if an objection
as to the Section 313 statement is taken at the earliest stage, the
court can make good the defect and record an additional statement
as that would be in the interest of all but if the matter is allowed to
linger on and the objections are taken belatedly it would be a difficult
situation for the prosecution as well as the accused.
78. In the case before us, as already indicated, the objection as to
the defective 313 statements had not been raised in the trial court.
We must assume therefore that no prejudice had been felt by the
23 (1998) 3 SCC 455
412 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
appellants even assuming that some incriminating circumstances in
the prosecution story had been left out. We also accept that most of
the fifteen questions that have been put before us by Mr. Sharan, are
inferences drawn by the trial court on the evidence. The challenge
on this aspect made by the learned counsel for the appellants, is
also repelled.”
(Emphasis supplied)
44. From the decisions noticed above, the legal position that emerges,
inter-alia, is that to enable an accused to explain the circumstances
appearing in the evidence against him, all the incriminating
circumstances appearing against him in the evidence must be
put to him. But where there has been a failure in putting those
circumstances to the accused, the same would not ipso facto vitiate
the trial unless it is shown that its non-compliance has prejudiced
the accused. Where there is a delay in raising the plea, or the plea
is raised for the first time in this Court, it could be assumed that no
prejudice had been felt by the accused.
45. In the instant case, though we could not find that the incriminating
circumstance pertaining to appellants exhorting the main accused
Babu Ram was specifically put to the appellants, they were aware
of the prosecution case against them as, vide question no.(i), they
were apprised of the FIR lodged by PW-2 which delineated their
role as the ones who exhorted the main accused Babu Ram to fire
gunshots. Further, vide question no.(iv) it was clarified that gunshots
were fired by Babu Ram. And questions (ii) and (iii) indicated that the
appellants were being proceeded against as they had participated
in the crime by sharing common intention with the main accused.
Taking the above into account as also that the appellants were
throughout represented by their counsel and had cross-examined the
prosecution witnesses, yet they raised no such plea, either before
the trial court or the High Court, it can safely be assumed that the
appellants had suffered no prejudice on that count. More so, when
the case of the appellants was of complete denial i.e., that they
were not present at the time of occurrence, which was disbelieved
by the trial court as well as the High Court. We are therefore of the
considered view that the conviction of the appellants is not vitiated
for alleged non-compliance of the provisions of Section 313 CrPC.
[2023] 12 S.C.R. 413
SUNIL v. STATE OF NCT OF DELHI
Conclusion
46. In view of our discussion above, though we find the conviction of
the appellants under Section 302 read with Section 34 of the I.P.C.
unsustainable, we uphold the conviction of the appellants under
Section 307 read with Section 34 of the I.P.C. and hereby affirm
the sentence awarded to the appellants for the offence punishable
under Section 307/34 of the I.P.C. Consequently, the appeals are
partly allowed. The conviction and sentence of the appellants under
Section 302 read with Section 34 of the I.P.C. is set aside and the
appellants are acquitted of the said charge. However, their conviction
and sentence under Section 307 read with Section 34 of the I.P.C.
as awarded by the trial court and affirmed by the High Court is
maintained and hereby affirmed. The appellants are reported to be
on bail. Their bail bonds are cancelled. They shall surrender forthwith
to serve out the remaining sentence, if any, as awarded by the trial
court under Section 307/34 of the I.P.C. If the appellants have
already served out the sentence awarded to them under Section
307/34 I.P.C., they need not be taken into custody, after verification
of the records/custody certificates.
47. With the aforesaid directions, all the three appeals stand disposed of.
Headnotes prepared by: Ankit Gyan Result of the case : Appeals disposed of.
