SUNIL @ SONU ETC.versusSTATE NCT OF DELHI

                 [2024] 9 S.C.R. 616 : 2024 INSC 727

                            Sunil @ Sonu Etc.
                                    v.
                            State NCT of Delhi
                (Criminal Appeal Nos. 3978-3979 of 2024)
                             24 September 2024
              [B.R. Gavai* and K.V. Viswanathan, JJ.]


                           Issue for Consideration
       Issue arose for consideration that as to whether the accused can
       be convicted for the offence punishable u/s.302 IPC or in the facts
       and circumstance of the case, the conviction needs to be altered
       to a lesser offence.

                                  Headnotes†
       Penal Code, 1860 – s.304 Part-I, s.302 rw s.34 – Culpable
       homicide not amounting to murder – Pre-existing disputes
       between the parties leading to verbal altercation whereafter
       accused persons attacked the victims with knives and dandas,
       resulting in death of one – FIR lodged by one of the victim
       as also the appellant – Conviction of the appellants- accused
       no. 1 and 4 for the offences punishable u/ss.302/34 and
       sentenced to undergo rigorous imprisonment for life – Appeal
       thereagainst dismissed – Correctness:
       Held: Prosecution proved beyond reasonable doubt that the
       injuries sustained by deceased were caused by the appellants
       and sufficient to cause death of the deceased – No interference
       warranted with the finding of the courts below that the appellants
       caused homicidal death of the victim – FIR lodged at the instance
       of the appellant that the victims had come to the shop of the
       other appellant in a heavily drunken condition, and had tried to
       assault the appellants – Medical certificates of appellants that
       they had sustained the injuries, was deposed by the IO – Also
       evidence of Investigating Officer that he found not only deceased
       but also all the accused persons admitted in the hospital and
       that he did not find the other victim in the said hospital – Thus,
       the defence of the appellants is a possible defence – Nothing on

* Author
[2024] 9 S.C.R.                                                         617

                    Sunil @ Sonu Etc. v. State NCT of Delhi


     record to establish that there was any pre-meditation – As such,
     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 – Also nothing on
     record to show that the appellants took undue advantage or
     acted in a cruel or unusual manner – Thus, appellants entitled
     to the benefit of doubt – Case would be covered under Part-I
     of s.304 – Conviction of the appellants u/s.302 altered to Part-I
     of s.304 – Appellants having undergone the sentence of more
     than 8 years without remission, sentenced to the period already
     undergone and to be released forthwith if not required in any
     other case. [Paras 9, 13, 15, 16-18]

                                 List of Acts
     Penal Code, 1860.

                              List of Keywords
     Offence punishable u/s.302 IPC; Conviction to be altered to
     lesser offence; Pre-existing disputes; Verbal altercation; Injury
     sufficient to cause death; Homicidal death; Medical certificates;
     Pre-meditation; Sudden fight in heat of passion upon sudden
     quarrel; Undue advantage; Act in cruel or unusual manner;
     Benefit of doubt; Remission; Conviction u/s.302 altered to Part-I
     of s.304 IPC.

                              Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
     3978-3979 of 2024
     From the Judgment and Order dated 26.06.2023 of the High Court
     of Delhi at New Delhi in CRLA No. 408 and 137 of 2018

                           Appearances for Parties
     Rishi Malhotra, Sr. Adv., Ms. Ambuja, S. Maini, Utkarsh Singh,
     Advs. for the Appellants.
     Prashant Singh, Sharath Nambiar, Ayush Anand, Mukesh Kumar
     Maroria, Vinayak Sharma, Kartikeya Asthana, Advs. for the
     Respondent.
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                  Judgment / Order of the Supreme Court

                                    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 judgment and order, the High Court upheld the judgment and order
       dated 25th October 2017 rendered by the Additional Sessions Judge,
       North District, Rohini, Delhi (hereinafter referred to as “the trial court”)
       in Sessions Case No. 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 abusing Rahul
           (PW-1) and Sachin (deceased) and after a verbal 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
[2024] 9 S.C.R.                                                         619

                    Sunil @ Sonu Etc. v. State NCT of Delhi


           (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 of the four accused persons
         for offences punishable under Section 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 (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
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            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 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 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.
[2024] 9 S.C.R.                                                         621

                    Sunil @ Sonu Etc. v. State NCT of Delhi


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 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.
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.
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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 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
    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
[2024] 9 S.C.R.                                                          623

                    Sunil @ Sonu Etc. v. State NCT of Delhi


     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 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:
           “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,
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       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 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.
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.

       Result of the Case: Appeals partly allowed.



       †
           Headnotes prepared by: Nidhi Jain