# CASE DETAILS SUNIL v. STATE OF NCT OF DELHI

- **Citation:** 2023 INSC 840
- **Court:** Supreme Court of India
- **Decided:** 2023-09-21
- **Case number:** Criminal Appeal No.688 of 2011
- **Bench:** Hrishikesh Roy, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-sunil-v-state-of-nct-of-delhi-36476
- **Pages:** 33

## Headnote

Issues for consideration: (i) Whether based on the evidence led, the
appellants could be convicted for the off ence of murder of the two deceased
with the aid of s.34 IPC or only for the off ence 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 fi red 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 (nonappellant) 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 specifi c and consistent to target the
said two deceased persons - There is absence of cogent evidence that main
accused was instigated/exhorted to fi re shots at the two deceased - The
evidence, which is consistent, is about exhorting main accused not to spare
381
382
SUPREME COURT REPORTS
[2023] 12 S.C.R.
rival faction's supporters - But there is no evidence that the two deceased
were rival faction's supporters - General exhortation is not suffi cient to
fasten them with vicarious liability for shots fi red 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 fi red 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
fi red 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 off ence 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 specifi c as to who in particular was targeted
at the behest of the appellants but the very fact that indiscriminate fi ring
continued for long, say 20-25 minutes and the appellants were found present
and exhorting main accused to fi re, 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 fi red 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 off ence 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 all - Common intention
383
pr

## Text

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[2023] 12 S.C.R. 381 : 2023 INSC 840
CASE DETAILS
SUNIL
v.
STATE OF NCT OF DELHI
(Criminal Appeal No.688 of 2011)
SEPTEMBER 21, 2023
[HRISHIKESH ROY AND MANOJ MISRA, JJ.]
HEADNOTES
Issues for consideration: (i) Whether based on the evidence led, the
appellants could be convicted for the off ence of murder of the two deceased
with the aid of s.34 IPC or only for the off ence 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 fi red 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 (nonappellant) 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 specifi c and consistent to target the
said two deceased persons - There is absence of cogent evidence that main
accused was instigated/exhorted to fi re shots at the two deceased - The
evidence, which is consistent, is about exhorting main accused not to spare
381
382
SUPREME COURT REPORTS
[2023] 12 S.C.R.
rival faction's supporters - But there is no evidence that the two deceased
were rival faction's supporters - General exhortation is not suffi cient to
fasten them with vicarious liability for shots fi red 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 fi red 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
fi red 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 off ence 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 specifi c as to who in particular was targeted
at the behest of the appellants but the very fact that indiscriminate fi ring
continued for long, say 20-25 minutes and the appellants were found present
and exhorting main accused to fi re, 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 fi red 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 off ence 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 all - Common intention
383
pre-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 off ence 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 fi rst 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 fi re 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
suff ered no prejudice on that count. [Para 45]
LIST OF CITATIONS AND OTHER REFERENCES
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
SUNIL v. STATE OF NCT OF DELHI
384
SUPREME COURT REPORTS
[2023] 12 S.C.R.
Pareira v. State of 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.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
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.
Appearances:
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.
385
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
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 (co-accused), 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 affi rmed 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 affi rmed 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 fi ne 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 fi ne 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 fi ring by Babu
Ram @ Fauji (non-appellant) from his licensed single barrel gun, two
persons, namely, Anil Kumar and Vijay, suff ered gun-shot injuries and
SUNIL v. STATE OF NCT OF DELHI
386
SUPREME COURT REPORTS
[2023] 12 S.C.R.
died; and 26 others received pellet injuries, some of them being grievous
in nature.
3. Babu Ram, who fi red 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 fi re 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 (non-appellant) 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 fi red 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
387
taken by Babu Ram was that a mob had surrounded his house and threatened
to torch it. Therefore, to disburse the mob, shots were fi red. 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 fi red 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:-
SUNIL v. STATE OF NCT OF DELHI
[MANOJ MISRA, J.]
388
SUPREME COURT REPORTS
[2023] 12 S.C.R.
"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 benefi t 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, PW-23,
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, PW38, 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 fi ring 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
389
no way can an unruly crowd which has assembled on street No.300
set on fi re any house which is 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,
fi red 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 falsifi es 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 fi red 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 fi red by Babu Ram is not disputed by him. By
no stretch of imagination can fi ring of 16 rounds be belittled. If a man
SUNIL v. STATE OF NCT OF DELHI
[MANOJ MISRA, J.]
390
SUPREME COURT REPORTS
[2023] 12 S.C.R.
fi res 16 rounds on a crowd causing death of 2 and injuring 26 others,
the crowd is bound to retaliate.
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 diff erence 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 diff erence 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 fi ring by Babu Ram on the persons in street No.300 and
the fact that his house abuts street No.400 evidences that the fi ring 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 fi re 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 fi red 16 shots, all directed
downwards on the persons in street No.300, with specifi c targets
391
being Mangat Ram and his family members against whom Babu
Ram had a grievance of being the sympathizers of Lala Satpal.
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 diff erent
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 fi ring by Babu Ram cannot be justifi ed under
any circumstances.
56. The testimony of the witnesses of the prosecution and the defence,
though with a diff erence 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 fi red 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 fi ring 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
fi ring 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 benefi t 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 (PW-8),
Kashmere Lal (PW-9), Darshana (PW-13), Raj Kumar (PW-14) and Sushil
SUNIL v. STATE OF NCT OF DELHI
[MANOJ MISRA, J.]
392
SUPREME COURT REPORTS
[2023] 12 S.C.R.
Kumar (PW-15), who were all injured in the fi ring, 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 to fi re. 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 diffi cult 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
fi re 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 fi red
from the roof-top at people who were on the street. It would thus be diffi cult
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 fi red 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 fi re shots, in absence of clear and cogent evidence that Babu Ram
was instigated/exhorted to fi re shots at the two deceased, the appellants
cannot be convicted for the off ence 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 fi ve years
393
of sentence, which they were awarded for off ence punishable under Section
307/34 of the I.P.C., their appeals be allowed and their sentence be reduced
to the period of sentence already undergone for the off ence 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 suff ers from a fundamental defect
inasmuch as the incriminating circumstance about the appellants exhorting/
instigating Babu Ram to fi re 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;
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
SUNIL v. STATE OF NCT OF DELHI
[MANOJ MISRA, J.]
394
SUPREME COURT REPORTS
[2023] 12 S.C.R.
(vii) Zahoor & Others v. State of Uttar Pradesh7;
(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 fi red 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 fi red. 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
7
 (2011) 15 SCC 218
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
395
Section 313 CrPC, it was submitted that even if it was not put to them, they
suff ered no prejudice, which is clear from the following 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 specifi cally 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 fi rst 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
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
SUNIL v. STATE OF NCT OF DELHI
[MANOJ MISRA, J.]
396
SUPREME COURT REPORTS
[2023] 12 S.C.R.
to recapitulate facts which have been found proved, and regarding which
there is no serious dispute, namely,
(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 fi red 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 fi re 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
397
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 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 fi red
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 fi ring
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 fi red 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
suff ered could not have been targeted if gunshots had been fi red from the
roof top of Babu Ram's house. Therefore, both the courts below disbelieved
SUNIL v. STATE OF NCT OF DELHI
[MANOJ MISRA, J.]
398
SUPREME COURT REPORTS
[2023] 12 S.C.R.
Babu Ram's plea that he fi red gunshots in self-defence to disburse the crowd
which had surrounded his house.
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 suff ered 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
fi red 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 fi re 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 fi ring.
The fi rst shot hit Anil. Second shot hit right leg of Mangat Ram. Thereafter,
Babu Ram fi red indiscriminately, and many people received pellet injuries.
399
When Babu Ram was fi ring indiscriminately, the other accused, namely,
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 specifi c
about the sequence of events. He stated that accused Fauji @ Babu Ram
fi rst fi red 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
fi re at persons whom they point at; Ravinder and Vijay also shouted that
no one should be spared; simultaneously other accused also told Fauji to
fi re at persons whom they point at, so that no madadgar (i.e., supporter) of
Satpal is spared; then Fauji fi red, 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 fi re at him; in consequence, Fauji
fi red at PW-8's son, the shot hit him and he died; whereafter, Fauji started
fi ring indiscriminately resulting in injuries to several persons.
24.