Supreme Court of India
Sunil @ Sonu Etc vs State Nct Of Delhi on 24 September, 2024
Author: B.R. Gavai
Bench: B.R. Gavai
2024 INSC 727 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. OF 2024
[Arising out of SLP(Crl.) Nos. 6250-6251 of 2024]
SUNIL @ SONU ETC. …APPELLANT(S)
VERSUS
STATE NCT OF DELHI …RESPONDENT(S)
JUDGMENT
B.R. GAVAI, J.
1. Leave granted.
2. The present appeals challenge the judgment and order
dated 26th June 2023, passed by the Division Bench of the
High Court of Delhi at New Delhi in Criminal Appeals No.
408 and 137 of 2018, wherein the Division Bench dismissed
the appeals filed by the appellants Sunil @ Sonu (Accused
No.1) and Nitin @ Devender (Accused No.4). By the said
Signature Not Verified judgment and order, the High Court upheld the judgment
Digitally signed by
Narendra Prasad
and order dated 25th October 2017 rendered by the
Date: 2024.09.24
12:22:29 IST
Reason:
Additional Sessions Judge, North District, Rohini, Delhi
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(hereinafter referred to as “the trial court”) in Sessions CaseNo. 139 of 2017 convicting the appellants for the offences
punishable under Section 302 read with Section 34 of the
Indian Penal Code, 1860 (hereinafter referred to as “IPC”).
The High Court also upheld the order of sentence dated 6th
November 2017 vide which the trial court had sentenced
them to undergo rigorous imprisonment for life along with
fine of Rs. 10,000/- each, in default whereof simple
imprisonment for 1 year for the offence punishable under
Section 302 read with Section 34 of IPC.
3. Shorn of details, the facts leading to the present appeals
are as under:
3.1 The case of the prosecution is that Rahul (PW-1) and
Sachin (deceased) had pre-existing disputes with one of the
present appellants Sunil @ Sonu (Accused No.1) and his
brother Satish @ Chhotu (Accused No. 2). On 28th November
2016, Rahul (PW-1) along with Sachin (deceased) was
walking on the road and appellant Sunil @ Sonu (Accused
No.1), Satish @ Chhotu (Accused No.2), Gaurav (Accused No.
3) and the other appellant Nitin @ Devender (Accused No.4)
were standing there. At about 09:15 PM, they started
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abusing Rahul (PW-1) and Sachin (deceased) and after averbal altercation, all the four accused caught hold of them
and started attacking them with knives and dandas. Sachin
(deceased) tried to run, and the present appellants chased
him while being armed with a knife. They caught him and
inflicted knife blows. Thereafter, Shivani (PW-2) (Aunt of
Rahul/PW-1) while trying to save Rahul (PW-1), saw a police
official namely ASI Subhash Chandra (PW-15) passing by
and after stopping him took him to the place of the incident.
On seeing them, the accused persons ran away.
3.2 The police were called, and two separate PCR vans took
Rahul (PW-1) and Sachin (deceased) to the hospital.
Thereafter, SI Suresh (PW-19) arrived at the spot. Rahul (PW-
1) could not be found, and Sachin (deceased) was found unfit
to give a statement. A search was conducted for Rahul (PW-1)
but he could not be found. Thereafter, Rahul (PW-1) himself
arrived at the Police Station on 29th November 2016 at about
11:45 PM and his statement was recorded. Subsequently, a
First Information Report (hereinafter referred to as “FIR”) No.
667 of 2016 was registered at P.S. Jahangir Puri, District
North West, Delhi on 30th November 2016 against three out
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of the four accused persons for offences punishable underSection 307 read with Section 34 of IPC based on the written
statement of Rahul (PW-1) narrating the whole incident from
his point of view.
3.3 The search for the accused persons began and all the
four accused were found behind PRAYAS Home, EE Block,
Jahangir Puri. All four were arrested and their disclosure
statements were recorded.
3.4 On 2nd December 2016, information was received that
Sachin (deceased) had died during treatment and the charge
for offence punishable under Section 302 read with Section
34 of IPC was added.
3.5 The post-mortem of Sachin (deceased) was conducted
by Dr. Arun Kumar (PW-8), and as per the post-mortem
report the cause of death was opined to be septicemic shock
consequent upon compartment syndrome and infection of
left lower limb as a result of ante mortem injury to left thigh
produced by pointed sharp edged object.
3.6 The medical examination of Rahul (PW-1) was
conducted on 30th November 2016 by Dr. Avinash Tripathi
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(PW-9) and the existence of abrasions were found and it was
opined that Rahul had sustained simple injuries.
3.7 On completion of the investigation, charge-sheet was
filed by the Investigating Officer Inspector Ajay Kumar (PW-
23). Charges were framed against the accused persons Satish
@ Chhotu and Gaurav Kumar for offences punishable under
Section 308 read with Section 34 of IPC and the present
appellants were charged for offences punishable under
Section 302 read with Section 34 of IPC.
3.8 In order to substantiate its charges levelled against the
accused persons, the prosecution examined 23 witnesses
and on the other hand, to rebut the case of the prosecution,
the defense examined 3 witnesses.
3.9 After the evidence of the prosecution was completed,
one of the appellants Sunil @ Sonu (Accused No.1) gave his
statement under Section 313 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) and
denied all charges. He further stated that the present FIR
was registered as a counterblast to an earlier FIR (No. 664 of
2016 lodged at P.S. Jahangir Puri, District North West, Delhi)
for offences punishable under Section 307 read with Section
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34 of IPC registered by appellant Sunil @ Sonu (Accused
No.1) himself and where Rahul (PW-1) is an accused person.
It was further stated that Shivani (PW-2) is an interested
witness being the aunt of Rahul and that she is trying to save
him from the earlier FIR by helping him take revenge through
the present FIR.
3.10 At the conclusion of the trial, the trial court convicted
the present appellants (Accused No. 1 and 4) for offences
punishable under Section 302 read with Section 34 of IPC
and convicted Satish @ Chhotu (Accused No. 2) and Gaurav
Kumar (Accused No. 3) for offences punishable under Section
323 read with Section 34 of IPC. The trial court vide a
separate order dated 6th November 2017 sentenced the
present appellants to rigorous imprisonment for life with fine
of Rs. 10,000/- each in default to undergo further simple
imprisonment for 1 year for the offences punishable under
Section 302 read with Section 34 of IPC.
3.11 Being aggrieved thereby, the present appellants
preferred criminal appeals before the High Court challenging
the orders of conviction and sentence awarded by the trial
court. The High Court vide the common impugned judgment
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and order dismissed the appeals and affirmed the conviction
and sentence awarded by the trial court.
3.12 Being aggrieved thereby, the present appeals.
4. We have heard Shri Rishi Malhotra, learned Senior
Counsel appearing on behalf of the appellants and Shri
Prashant Singh, learned counsel appearing on behalf of the
respondent-State.
5. Shri Malhotra, learned Senior Counsel appearing on
behalf of the appellants submitted that the learned trial court
has erred in convicting the appellants and the High Court
has also erred in affirming the said conviction. Shri Malhotra
submitted that there is an inordinate delay in lodging the FIR
which is not explained by the prosecution. It is submitted
that although Rahul (PW-1) was present with the deceased
Sachin at the time of the occurrence, he has lodged the FIR
only on the next day. It is submitted that there are material
contradictions in the testimony of Rahul (PW-1). The learned
Senior Counsel further submitted that insofar as Shivani
(PW-2) is concerned, she is an interested witness. It is
submitted that Shivani (PW-2), in her cross-examination, has
admitted that she did not tell the police in her statement
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about the accused persons causing injuries to deceased
Sachin and Rahul (PW-1). Shri Malhotra further submitted
that with respect to the same incident, a cross FIR being No.
664/2016 was already registered by the appellant Sunil @
Sonu on 29th November 2016 which was much prior in point
of time. It is submitted that, in the said incident, both the
appellants Sunil @ Sonu and Nitin @ Devender had received
severe injuries. It is submitted that both the courts below
have failed to take into consideration that the prosecution
has failed to explain the injuries sustained by the appellants.
The learned Senior Counsel therefore submitted that the
order of conviction as recorded by the trial court and affirmed
by the High Court is not sustainable in law.
6. In the alternative, Shri Malhotra submitted that since
the prosecution has failed to explain the injuries sustained
by the appellants, the prosecution has suppressed the real
genesis of the incident. It is therefore submitted that the
conviction under Section 302 of the IPC would not be
sustainable and the same would be at the most under Part-I
or II of Section 304 of IPC.
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7. Shri Prashant Singh, learned counsel appearing on
behalf of the respondent-State, on the contrary, submitted
that the trial court and the High Court have concurrently,
upon correct appreciation of evidence, found that the
prosecution has proved the case beyond reasonable doubt
and as such, the judgment and order of conviction and
sentence warrants no interference.
8. With the assistance of the learned counsel for the
parties, we have perused the materials placed on record.
9. From the evidence of Dr. Arun Kumar (PW-8) who
conducted the post-mortem as well as the evidence of Rahul
(PW-1) and Shivani (PW-2), we find that the prosecution has
proved beyond reasonable doubt that the injuries which were
sustained by deceased Sachin were caused by the appellants
and injury No. 13 was sufficient to cause death of deceased
Sachin. As such, we find that no interference would be
warranted with the finding of the trial court and the High
Court that the appellants have caused homicidal death of
deceased Sachin.
10. The next question that arises for consideration is as to
whether the accused can be convicted for the offence
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punishable under Section 302 of IPC or in the facts and
circumstance of the case, the conviction needs to be altered
to a lesser offence.
11. According to Rahul (PW-1), on the date of the incident
i.e. 28th November 2016 at around 8:45-9:00 PM, when he
was talking to Shivani (PW-2), the accused persons came
there and started arguing with deceased Sachin. He stated
that accused Gaurav @ Bakra started abusing deceased
Sachin and when they both (Rahul (PW-1) and deceased
Sachin) objected to this, the accused persons caught hold of
deceased Sachin. When the said witness attempted to save
deceased Sachin, the accused persons hit him with danda on
his head. Then, accused Nitin @ Devender pulled out a knife
from his possession. On seeing this, deceased Sachin started
running to save himself. However, accused persons caught
deceased Sachin at the pulia of gandanala at Block-EE and
started giving knife blows to him. At that time, a police
official was passing from the street on motor-cycle and
Shivani (PW-2) stood before his motor-cycle and stopped him.
Shivani (PW-2) brought the police official to the place where
deceased Sachin was being beaten up. On seeing the said
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police official, all the four accused ran away. Shivani (PW-2)
made calls on No. 100 and after some time, a PCR van
reached the spot. Thereafter, deceased Sachin and Rahul
(PW-1) were taken to the hospital.
12. It is to be noted that, though the incident was alleged to
have taken place on the night of 28th November 2016, the FIR
was lodged on 30th November 2016 i.e. after more than 24
hours. Though Rahul (PW-1) has tried to give an explanation
that after he had been taken to BJRM Hospital, he left the
said hospital in order to search for his friend deceased
Sachin and thereafter he fell unconscious; the said
explanation does not appear to be plausible inasmuch as the
record would show that deceased Sachin had already been
taken to BJRM Hospital. If that be so, then the conduct of
Rahul (PW-1) in leaving the BJRM Hospital in search of
deceased Sachin appears to be strange. It can further be
seen that, though in the statement recorded under Section
161 Cr.P.C., Rahul (PW-1) admitted that he and deceased
Sachin had consumed liquor, he has denied the same in his
cross-examination. Rahul (PW-1) has admitted that there is
one case registered against him for the offence punishable
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under Section 307 of IPC with respect to the present
incident. It is further to be noted that though in his
examination-in-chief, Rahul (PW-1) tried to give explanation
that he could not lodge the FIR expeditiously since he fell
unconscious, he admitted in his cross-examination that he
regained consciousness in the morning of the next day. Then
the question is what prevented him from lodging the FIR till
21:15 hours. Shivani (PW-2) also deposed almost to the same
effect. There are various contradictions in her deposition. She
also admitted that Rahul (PW-1) was also arrested by the
police and that she gave her statement after Rahul (PW-1)
was arrested by the police.
13. In the FIR lodged at the instance of appellant Sunil @
Sonu, it is stated that Rahul (PW-1) and deceased Sachin
had come to the shop of Satish in a heavily drunken
condition, and they had tried to assault the appellants. The
medical certificates of appellants Sunil @ Sonu and Nitin @
Devender would show that they had sustained the following
injuries:
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“Injuries sustained by appellant Sunil @ Sonu:
1) Pain and bleeding from Right side of parietal
region.
2) Abrasions on middle finger of the right
hand.
Injuries sustained by appellant Nitin @
Devender
1) Incised contused lacerated wound on
parietal region of size 3 x 1 x 0.5 cm.
2) Abrasion over left side of abdomen of size 3
x 0.5 cm.”
14. Undisputedly, the said injuries are not explained by the
prosecution.
15. The defence of the accused persons is specific that, it is
the deceased Sachin and Rahul (PW-1) had come in a
drunken condition at the shop of Satish and they started
abusing and assaulting the appellants. The evidence of SI
Suresh, Investigating Officer (PW-19) would reveal that when
he visited the BJRM Hospital on 28th November 2016, he
found not only deceased Sachin but also found all the
accused persons admitted in the said hospital. He has also
admitted that he did not find Rahul (PW-1) in the said
hospital. SI Rakesh Kumar (DW-3), who is an IO in FIR No.
664/2016 which was registered at the instance of appellant
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Sunil @ Sonu, also deposed that all the accused persons
were medically examined and had received injuries which
were exhibited vide Ex.DW-3/A to Ex.DW-3/D. It can thus
clearly be seen that the defence of the appellants is a
possible defence. There is a possibility of deceased Sachin
and Rahul (PW-1) coming to the shop of Satish and a fight
taking place between the two groups. There is nothing on
record to establish that there was any pre-meditation. As
such, we find that the possibility of the offence being
committed by the appellants without pre-meditation in a
sudden fight in the heat of passion upon a sudden quarrel
cannot be ruled out. There is nothing on record to show that
the appellants have taken undue advantage or acted in a
cruel or unusual manner.
16. In that view of the matter, we are of the considered
opinion that the appellants are entitled to the benefit of
doubt. We find that the present case would be covered under
Part-I of Section 304 of IPC and as such, the conviction
under Section 302 of IPC would not be tenable.
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17. The appellants have undergone the sentence of more
than 8 years without remission. We are therefore inclined to
partly allow the appeals.
18. In the result, we pass the following order:
(i) The appeals are partly allowed; (ii) The conviction of the appellants under Section 302 of
IPC is altered to Part-I of Section 304 of IPC;
(iii) The appellants are sentenced to the period already
undergone and are directed to be released forthwith if
not required in any other case.
19. Pending application(s), if any, shall stand disposed of.
…………………………J.
(B.R. GAVAI)
…………………………J.
(K.V. VISWANATHAN)
NEW DELHI;
SEPTEMBER 24, 2024.
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