SUNIL @ SONU ETC. versus STATE NCT OF DELHI
[2024] 9 S.C.R. 616, Supreme Court of India, 2024
Outcome: Case Partly allowed (Granted)
Segment: Facts
[2024] 9 S.C.R. 616 : 2024 INSC 727
Sunil @ Sonu Etc. 
v. 
State NCT of Delhi
(Criminal Appeal Nos. 3978-3979 of 2024)
24 September 2024
[B.R. Gavai* and K.V. Viswanathan, JJ.]
Issue for Consideration
Issue arose for consideration that as to whether the accused can 
be convicted for the offence punishable u/s.302 IPC or in the facts 
and circumstance of the case, the conviction needs to be altered 
to a lesser offence.
Headnotes†
Penal Code, 1860 – s.304 Part-I, s.302 rw s.34 – Culpable 
homicide not amounting to murder – Pre-existing disputes 
between the parties leading to verbal altercation whereafter 
accused persons attacked the victims with knives and dandas, 
resulting in death of one – FIR lodged by one of the victim 
as also the appellant – Conviction of the appellants- accused  
no. 1 and 4 for the offences punishable u/ss.302/34 and 
sentenced to undergo rigorous imprisonment for life – Appeal 
thereagainst dismissed – Correctness:
Held: Prosecution proved beyond reasonable doubt that the 
injuries sustained by deceased were caused by the appellants 
and sufficient to cause death of the deceased – No interference 
warranted with the finding of the courts below that the appellants 
caused homicidal death of the victim – FIR lodged at the instance 
of the appellant that the victims had come to the shop of the 
other appellant in a heavily drunken condition, and had tried to 
assault the appellants – Medical certificates of appellants that 
they had sustained the
injuries, was deposed by the IO – Also 
evidence of Investigating Officer that he found not only deceased 
but also all the accused persons admitted in the hospital and 
that he did not find the other victim in the said hospital – Thus, 
the defence of the appellants is a possible defence – Nothing on 
* Author
[2024] 9 S.C.R. 
617
Sunil @ Sonu Etc. v. State NCT of Delhi
record to establish that there was any pre-meditation – As such, 
the possibility of the offence being committed by the appellants 
without pre-meditation in a sudden fight in the heat of passion 
upon a sudden quarrel cannot be ruled out – Also nothing on 
record to show that the appellants took undue advantage or 
acted in a cruel or unusual manner – Thus, appellants entitled 
to the benefit of doubt – Case would be covered under Part-I 
of s.304 – Conviction of the appellants u/s.302 altered to Part-I 
of s.304 – Appellants having undergone the sentence of more 
than 8 years without remission, sentenced to the period already 
undergone and to be released forthwith if not required in any 
other case. [Paras 9, 13, 15, 16-18]
List of Acts
Penal Code, 1860.
List of Keywords
Offence punishable u/s.302 IPC; Conviction to be altered to 
lesser offence; Pre-existing disputes; Verbal altercation; Injury 
sufficient to cause death; Homicidal death; Medical certificates; 
Pre-meditation; Sudden fight in heat of passion upon sudden 
quarrel; Undue advantage; Act in cruel or unusual manner; 
Benefit of doubt; Remission; Conviction u/s.302 altered to Part-I 
of s.304 IPC.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 
3978-3979 of 2024
From the Judgment and Order dated 26.06.2023 of the High Court 
of Delhi at New Delhi in CRLA No. 408 and 137 of 2018
Appearances for Parties
Rishi Malhotra, Sr.
Adv., Ms. Ambuja, S. Maini, Utkarsh Singh, 
Advs. for the Appellants.
Prashant Singh, Sharath Nambiar, Ayush Anand, Mukesh Kumar 
Maroria, Vinayak Sharma, Kartikeya Asthana, Advs. for the 
Respondent.
618
[2024] 9 S.C.R.
Digital Supreme Court Reports
Judgment / Order of the Supreme Court
Judgment
B.R. Gavai, J.
1.	
Leave granted. 
2.	
The present appeals challenge the judgment and order dated 26th June 
2023, passed by the Division Bench of the High Court of Delhi at 
New Delhi in Criminal Appeals No. 408 and 137 of 2018, wherein the 
Division Bench dismissed the appeals filed by the appellants Sunil @ 
Sonu (Accused No.1) and Nitin @ Devender (Accused No.4). By the 
said judgment and order, the High Court upheld the judgment and order 
dated 25th October 2017 rendered by the Additional Sessions Judge, 
North District, Rohini, Delhi (hereinafter referred to as “the trial court”) 
in Sessions Case No. 139 of 2017 convicting the appellants for the 
offences punishable under Section 302 read with Section 34 of the 
Indian Penal Code, 1860 (hereinafter referred to as “IPC”). The High 
Court also upheld the order of sentence dated 6th November 2017 
vide which the trial court had sentenced them to undergo rigorous 
imprisonment for life along with fine of Rs. 10,000/- each, in default 
whereof simple imprisonment for 1 year for the offence punishable 
under Section 302 read with Section 34 of IPC.
3.	
Shorn of details, the facts leading to the present appeals are as under:
3.1	 The case of the prosecution is that Rahul (PW-1) and Sachin 
(deceased) had pre-existing disputes with one of the present 
appellants Sunil @ Sonu (Accused No.1) and his brother 
Satish @ Chhotu
(Accused No. 2). On 28th November 2016, 
Rahul (PW-1) along with Sachin (deceased) was walking 
on the road and appellant Sunil @ Sonu (Accused No.1), 
Satish @ Chhotu (Accused No.2), Gaurav (Accused No. 3) and 
the other appellant Nitin @ Devender (Accused No.4) were 
standing there. At about 09:15 PM, they started abusing Rahul 
(PW-1) and Sachin (deceased) and after a verbal altercation, 
all the four accused caught hold of them and started attacking 
them with knives and dandas. Sachin (deceased) tried to run, 
and the present appellants chased him while being armed with 
a knife. They caught him and inflicted knife blows. Thereafter, 
Shivani (PW-2) (Aunt of Rahul/PW-1) while trying to save Rahul 
(PW-1), saw a police official namely ASI Subhash Chandra
[2024] 9 S.C.R. 
619
Sunil @ Sonu Etc. v. State NCT of Delhi
(PW-15) passing by and after stopping him took him to the place 
of the incident. On seeing them, the accused persons ran away. 
3.2	 The police were called, and two separate PCR vans took Rahul 
(PW-1) and Sachin (deceased) to the hospital. Thereafter, SI 
Suresh (PW-19) arrived at the spot. Rahul (PW-1) could not 
be found, and Sachin (deceased) was found unfit to give a 
statement. A search was conducted for Rahul (PW-1) but he 
could not be found. Thereafter, Rahul (PW-1) himself arrived at 
the Police Station on 29th November 2016 at about 11:45 PM and 
his statement was recorded. Subsequently, a First Information 
Report (hereinafter referred to as “FIR”) No. 667 of 2016 was 
registered at P.S. Jahangir Puri, District North West, Delhi on 30th 
November 2016 against three out of the four accused persons 
for offences punishable under Section 307 read with Section 34 
of IPC based on the written statement of Rahul (PW-1) narrating 
the whole incident from his point of view. 
3.3	 The search for the accused persons began and all the four 
accused were found behind PRAYAS Home, EE Block, Jahangir 
Puri. All four were arrested and their disclosure statements 
were recorded.
3.4	 On 2nd December 2016, information was received that Sachin 
(deceased) had died during treatment and the charge for 
offence punishable under Section 302 read with Section 34 of 
IPC was added.
3.5	 The post-mortem of Sachin (deceased)
was conducted by Dr. 
Arun Kumar (PW-8), and as per the post-mortem report the 
cause of death was opined to be septicemic shock consequent 
upon compartment syndrome and infection of left lower limb as 
a result of ante mortem injury to left thigh produced by pointed 
sharp edged object. 
3.6	 The medical examination of Rahul (PW-1) was conducted on 
30th November 2016 by Dr. Avinash Tripathi (PW-9) and the 
existence of abrasions were found and it was opined that Rahul 
had sustained simple injuries.
3.7	 On completion of the investigation, charge-sheet was filed by 
the Investigating Officer Inspector Ajay Kumar (PW-23). Charges 
were framed against the accused persons Satish @ Chhotu 
and Gaurav Kumar for offences punishable under Section 308 
read with Section 34 of IPC and the present appellants were
620
[2024] 9 S.C.R.
Digital Supreme Court Reports
charged for offences punishable under Section 302 read with 
Section 34 of IPC.
3.8	 In order to substantiate its charges levelled against the accused 
persons, the prosecution examined 23 witnesses and on the 
other hand, to rebut the case of the prosecution, the defense 
examined 3 witnesses. 
3.9	 After the evidence of the prosecution was completed, one of the 
appellants Sunil @ Sonu (Accused No.1) gave his statement 
under Section 313 of the Code of Criminal Procedure, 1973 
(hereinafter referred to as “Cr.P.C.”) and denied all charges. 
He further stated that the present FIR was registered as a 
counterblast to an earlier FIR (No. 664 of 2016 lodged at P.S. 
Jahangir Puri, District North West, Delhi) for offences punishable 
under Section 307 read with Section 34 of IPC registered by 
appellant Sunil @ Sonu (Accused No.1) himself and where Rahul 
(PW-1) is an accused person. It was further stated that Shivani 
(PW-2) is an interested witness being the aunt of Rahul and 
that she is trying to save him from the earlier FIR by helping 
him take revenge through the present FIR. 
3.10	At the conclusion of the trial, the trial court convicted the present 
appellants (Accused No. 1 and 4) for offences punishable 
under Section 302 read with Section 34 of IPC and convicted 
Satish @ Chhotu (Accused No. 2) and Gaurav Kumar (Accused 
No. 3) for offences punishable under Section 323 read with 
Section 34 of IPC. The trial court
vide a separate order dated 
6th November 2017 sentenced the present appellants to rigorous 
imprisonment for life with fine of Rs. 10,000/- each in default to 
undergo further simple imprisonment for 1 year for the offences 
punishable under Section 302 read with Section 34 of IPC. 
3.11	Being aggrieved thereby, the present appellants preferred 
criminal appeals before the High Court challenging the orders 
of conviction and sentence awarded by the trial court. The High 
Court vide the common impugned judgment and order dismissed 
the appeals and affirmed the conviction and sentence awarded 
by the trial court. 
3.12	Being aggrieved thereby, the present appeals. 
4.	
We have heard Shri Rishi Malhotra, learned Senior Counsel appearing 
on behalf of the appellants and Shri Prashant Singh, learned counsel 
appearing on behalf of the respondent-State.
[2024] 9 S.C.R. 
621
Sunil @ Sonu Etc. v. State NCT of Delhi
5.	
Shri Malhotra, learned Senior Counsel appearing on behalf of 
the appellants submitted that the learned trial court has erred in 
convicting the appellants and the High Court has also erred in 
affirming the said conviction. Shri Malhotra submitted that there 
is an inordinate delay in lodging the FIR which is not explained by 
the prosecution. It is submitted that although Rahul (PW-1) was 
present with the deceased Sachin at the time of the occurrence, he 
has lodged the FIR only on the next day. It is submitted that there 
are material contradictions in the testimony of Rahul (PW-1). The 
learned Senior Counsel further submitted that insofar as Shivani 
(PW-2) is concerned, she is an interested witness. It is submitted 
that Shivani (PW-2), in her cross-examination, has admitted that 
she did not tell the police in her statement about the accused 
persons causing injuries to deceased Sachin and Rahul (PW-1). Shri 
Malhotra further submitted that with respect to the same incident, 
a cross FIR being No. 664/2016 was already registered by the 
appellant Sunil @ Sonu on 29th November 2016 which was much 
prior in point of time. It is submitted that, in the said incident, both 
the appellants Sunil @ Sonu and Nitin @ Devender had received 
severe injuries. It is submitted that both the courts below have 
failed to take into consideration that the prosecution has failed 
to explain the injuries sustained by the
appellants. The learned 
Senior Counsel therefore submitted that the order of conviction 
as recorded by the trial court and affirmed by the High Court is 
not sustainable in law.
6.	
In the alternative, Shri Malhotra submitted that since the prosecution 
has failed to explain the injuries sustained by the appellants, the 
prosecution has suppressed the real genesis of the incident. It is 
therefore submitted that the conviction under Section 302 of the IPC 
would not be sustainable and the same would be at the most under 
Part-I or II of Section 304 of IPC.
7.	
Shri Prashant Singh, learned counsel appearing on behalf of the 
respondent-State, on the contrary, submitted that the trial court 
and the High Court have concurrently, upon correct appreciation of 
evidence, found that the prosecution has proved the case beyond 
reasonable doubt and as such, the judgment and order of conviction 
and sentence warrants no interference.
8.	
With the assistance of the learned counsel for the parties, we have 
perused the materials placed on record.
622
[2024] 9 S.C.R.
Digital Supreme Court Reports
9.	
From the evidence of Dr. Arun Kumar (PW-8) who conducted the 
post-mortem as well as the evidence of Rahul (PW-1) and Shivani 
(PW-2), we find that the prosecution has proved beyond reasonable 
doubt that the injuries which were sustained by deceased Sachin were 
caused by the appellants and injury No. 13 was sufficient to cause 
death of deceased Sachin. As such, we find that no interference 
would be warranted with the finding of the trial court and the High 
Court that the appellants have caused homicidal death of deceased 
Sachin.
10.	 The next question that arises for consideration is as to whether the 
accused can be convicted for the offence punishable under Section 
302 of IPC or in the facts and circumstance of the case, the conviction 
needs to be altered to a lesser offence.
11.	 According to Rahul (PW-1), on the date of the incident i.e. 28th 
November 2016 at around 8:45-9:00 PM, when he was talking to 
Shivani (PW-2), the accused persons came there and started arguing 
with deceased Sachin. He stated that accused Gaurav @ Bakra 
started abusing deceased Sachin and when they both (Rahul (PW-1) 
and deceased Sachin) objected to this, the accused persons caught 
hold of deceased Sachin. When the said witness attempted to save 
deceased Sachin, the accused persons hit him with danda on his 
head. Then, accused Nitin @ Devender pulled out a knife from his 
possession. On seeing this, deceased Sachin started
running to 
save himself. However, accused persons caught deceased Sachin 
at the pulia of gandanala at Block-EE and started giving knife blows 
to him. At that time, a police official was passing from the street on 
motor-cycle and Shivani (PW-2) stood before his motor-cycle and 
stopped him. Shivani (PW-2) brought the police official to the place 
where deceased Sachin was being beaten up. On seeing the said 
police official, all the four accused ran away. Shivani (PW-2) made 
calls on No. 100 and after some time, a PCR van reached the spot. 
Thereafter, deceased Sachin and Rahul (PW-1) were taken to the 
hospital.
12.	 It is to be noted that, though the incident was alleged to have taken 
place on the night of 28th November 2016, the FIR was lodged on 
30th November 2016 i.e. after more than 24 hours. Though Rahul 
(PW-1) has tried to give an explanation that after he had been taken 
to BJRM Hospital, he left the said hospital in order to search for 
his friend deceased Sachin and thereafter he fell unconscious; the 
said explanation does not appear to be plausible inasmuch as the
[2024] 9 S.C.R. 
623
Sunil @ Sonu Etc. v. State NCT of Delhi
record would show that deceased Sachin had already been taken 
to BJRM Hospital. If that be so, then the conduct of Rahul (PW-1) 
in leaving the BJRM Hospital in search of deceased Sachin appears 
to be strange. It can further be seen that, though in the statement 
recorded under Section 161 Cr.P.C., Rahul (PW-1) admitted that he 
and deceased Sachin had consumed liquor, he has denied the same 
in his cross-examination. Rahul (PW-1) has admitted that there is 
one case registered against him for the offence punishable under 
Section 307 of IPC with respect to the present incident. It is further 
to be noted that though in his examination-in-chief, Rahul (PW-1) 
tried to give explanation that he could not lodge the FIR expeditiously 
since he fell unconscious, he admitted in his cross-examination that 
he regained consciousness in the morning of the next day. Then 
the question is what prevented him from lodging the FIR till 21:15 
hours. Shivani (PW-2) also deposed almost to the same effect. There 
are various contradictions in her deposition. She also admitted that 
Rahul (PW-1) was also arrested by the police and that she gave her 
statement after Rahul (PW-1) was arrested by the police.
13.	 In the FIR lodged at the instance of appellant Sunil @ Sonu, it is 
stated that Rahul (PW-1) and deceased Sachin had come to the 
shop of Satish in a heavily drunken condition, and they had tried 
to assault the appellants.
The medical certificates of appellants 
Sunil @ Sonu and Nitin @ Devender would show that they had 
sustained the following injuries:
“Injuries sustained by appellant Sunil @ Sonu:
1)	
Pain and bleeding from Right side of parietal region.
2)	
Abrasions on middle finger of the right hand.
Injuries sustained by appellant Nitin @ Devender
1)	
Incised contused lacerated wound on parietal region 
of size 3 x 1 x 0.5 cm.
2)	
Abrasion over left side of abdomen of size 3 x 0.5 cm.”
14.	 Undisputedly, the said injuries are not explained by the prosecution.
15.	 The defence of the accused persons is specific that, it is the deceased 
Sachin and Rahul (PW-1) had come in a drunken condition at the shop 
of Satish and they started abusing and assaulting the appellants. The 
evidence of SI Suresh, Investigating Officer (PW-19) would reveal 
that when he visited the BJRM Hospital on 28th November 2016,
624
[2024] 9 S.C.R.
Digital Supreme Court Reports
he found not only deceased Sachin but also found all the accused 
persons admitted in the said hospital. He has also admitted that he 
did not find Rahul (PW-1) in the said hospital. SI Rakesh Kumar 
(DW-3), who is an IO in FIR No. 664/2016 which was registered 
at the instance of appellant Sunil @ Sonu, also deposed that all 
the accused persons were medically examined and had received 
injuries which were exhibited vide Ex.DW-3/A to Ex.DW-3/D. It can 
thus clearly be seen that the defence of the appellants is a possible 
defence. There is a possibility of deceased Sachin and Rahul 
(PW-1) coming to the shop of Satish and a fight taking place between 
the two groups. There is nothing on record to establish that there 
was any pre-meditation. As such, we find that the possibility of the 
offence being committed by the appellants without pre-meditation in 
a sudden fight in the heat of passion upon a sudden quarrel cannot 
be ruled out. There is nothing on record to show that the appellants 
have taken undue advantage or acted in a cruel or unusual manner.
16.	 In that view of the matter, we are of the considered opinion that the 
appellants are entitled to the benefit of doubt. We find that the present 
case would be covered under Part-I of Section 304 of IPC and as 
such, the conviction under Section 302 of IPC would not be tenable.
17.	 The appellants have undergone the sentence of more than 8 years 
without remission. We
are therefore inclined to partly allow the 
appeals.
18.	 In the result, we pass the following order:
(i)	
The appeals are partly allowed;
(ii)	
The conviction of the appellants under Section 302 of IPC is 
altered to Part-I of Section 304 of IPC;
(iii)	 The appellants are sentenced to the period already undergone 
and are directed to be released forthwith if not required in any 
other case.
19.	 Pending application(s), if any, shall stand disposed of.
Result of the Case: Appeals partly allowed.
†Headnotes prepared by: Nidhi Jain