Supreme Court of India

SUNILversusSTATE OF NCT OF DELHI

Citation: 2023 INSC 840
Decided: 21 September 2023
Disposal: Disposed off
Bench: HRISHIKESH ROY

Holding

The appellants are not liable for murder under Section 302 IPC with the aid of Section 34, but are liable for attempt to murder under Section 307 IPC with the aid of Section 34.

Summary

The case arose from an altercation between two families in Jahangir Puri, Delhi, after which Babu Ram (non‑appellant) fetched a licensed gun and fired indiscriminately from a roof, killing two persons and injuring twenty‑six others. The appellants – Sunil, Shri Krishan and Ravinder – were convicted under Sections 302 and 307 read with Section 34 of the IPC for murder and attempt to murder, based on prosecution evidence that they exhorted Babu Ram not to spare the rival faction’s supporters. The Supreme Court examined whether the evidence established a common intention to commit murder, finding that the exhortations were general and not specifically directed at the two deceased, and that the prosecution failed to prove the requisite nexus for a Section 34 murder conviction. However, the Court held that the appellants did share a common intention to cause bodily injury likely to cause death, satisfying the elements of Section 307 IPC with the aid of Section 34. The Court also considered the procedural defect of not putting the incriminating circumstance of exhortation to the appellants under Section 313 CrPC, concluding that no prejudice was shown. Consequently, the murder convictions were set aside while the convictions under Section 307 IPC were upheld, and the appeals were partly allowed.

Issues considered

Whether the evidence proved a common intention under Section 34 IPC to convict the appellants for murder (Section 302 IPC) of the two deceased.
Whether the appellants can be convicted under Section 307 IPC read with Section 34 IPC for attempt to murder.
Whether the failure to put the incriminating circumstance of exhortation to the appellants while recording their statements under Section 313 CrPC vitiated the convictions.

Legislation cited

Arms Acts. 27
Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 300, s. 302, s. 307, s. 34

Subjects

murderattempt to murdercommon intentionSection 34 IPCSection 307 IPCSection 313 CrPCself‑defencevitiated trialappellate review

Judgment

[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 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
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 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 all – Common intention
SUNIL v. STATE OF NCT OF DELHI 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 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]

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
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.
SUNIL v. STATE OF NCT OF DELHI 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 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
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 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 (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 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
SUNIL v. STATE OF NCT OF DELHI 387
[MANOJ MISRA, J.]

taken by Babu Ram was that a mob had surrounded 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 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 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, 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, 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
SUNIL v. STATE OF NCT OF DELHI 389
[MANOJ MISRA, J.]

no way can an unruly crowd which has assembled on street No.300
set on ﬁre 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,
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
390 SUPREME COURT REPORTS [2023] 12 S.C.R.

ﬁres 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 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
SUNIL v. STATE OF NCT OF DELHI 391
[MANOJ MISRA, J.]

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 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 (PW-8),
Kashmere Lal (PW-9), Darshana (PW-13), Raj Kumar (PW-14) and Sushil
392 SUPREME COURT REPORTS [2023] 12 S.C.R.

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 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
SUNIL v. STATE OF NCT OF DELHI 393
[MANOJ MISRA, J.]

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 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;

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
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 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

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
SUNIL v. STATE OF NCT OF DELHI 395
[MANOJ MISRA, J.]

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 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

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 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 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
SUNIL v. STATE OF NCT OF DELHI 397
[MANOJ MISRA, J.]

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 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
398 SUPREME COURT REPORTS [2023] 12 S.C.R.

Babu Ram’s plea that he ﬁred 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 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.
SUNIL v. STATE OF NCT OF DELHI 399
[MANOJ MISRA, J.]

When Babu Ram was ﬁring 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 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 PW-2’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
400 SUPREME COURT REPORTS [2023] 12 S.C.R.

on his cot; at that 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.
SUNIL v. STATE OF NCT OF DELHI 401
[MANOJ MISRA, J.]

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 pre-
arranged 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

19 AIR 1955 SC 216
402 SUPREME COURT REPORTS [2023] 12 S.C.R.

the same intention independently of each other, e.g., the intention
to rescue another and, if necessary, to kill those who oppose.”
(Emphasis supplied)
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 pre-arranged 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
SUNIL v. STATE OF NCT OF DELHI 403
[MANOJ MISRA, J.]

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-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 SUPREME COURT REPORTS [2023] 12 S.C.R.

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.
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
SUNIL v. STATE OF NCT OF DELHI 405
[MANOJ MISRA, J.]

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,

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, or-
Secondly.-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, or-
Thirdly.-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,
or-
Fourthly.-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 SUPREME COURT REPORTS [2023] 12 S.C.R.

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 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.
SUNIL v. STATE OF NCT OF DELHI 407
[MANOJ MISRA, J.]

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,
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,
408 SUPREME COURT REPORTS [2023] 12 S.C.R.

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 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:

21 AIR 1951 SC 441: 1951 SCC Online SC 49
SUNIL v. STATE OF NCT OF DELHI 409
[MANOJ MISRA, J.]

“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 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

22 (2012) 2 SCC 648
410 SUPREME COURT REPORTS [2023] 12 S.C.R.

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 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
SUNIL v. STATE OF NCT OF DELHI 411
[MANOJ MISRA, J.]

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)
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 non-compliance 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

23 (1998) 3 SCC 455
412 SUPREME COURT REPORTS [2023] 12 S.C.R.

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 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,
SUNIL v. STATE OF NCT OF DELHI 413
[MANOJ MISRA, J.]

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.
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: Appeals disposed of.
Ankit Gyan

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