Full Judgment Text
2025 INSC 324
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2685 OF 2023
Suresh @ Hanumant … Appellant
versus
State (Govt. of NCT Delhi) ... Respondent
with
CRIMINAL APPEAL NO. 1250 OF 2023
and
CRIMINAL APPEAL NO. 3685 OF 2023
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The appellant Suresh @ Hanumant in Crl. Appeal
No.2685 of 2023 is accused no.3. The appellant, Dinesh
Kumar @ Khali in Crl. Appeal No. 1250 of 2023 is accused no.1,
and the appellant, Deepak Kumar @ Chintu in Crl. Appeal
No.3685 of 2023 is accused no.2. The trial court convicted all
the appellants for the offence punishable under Section 302
read with Section 34 of the Indian Penal Code, 1860 (for short,
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2025.03.05
17:56:40 IST
Reason:
‘the IPC’). In addition, accused no.1 was convicted for an
offence punishable under Section 25(1B)(a) and 27(1) of the
Criminal Appeal No.2685 of 2023 etc. Page 1 of 11
Arms Act, 1959 (for short, “the Arms Act”). They were
sentenced to undergo rigorous life imprisonment for the offence
punishable under Section 302 read with Section 34 of the IPC.
Accused no. 1 was sentenced to pay a fine of Rs.20,000/- for
the said offence. The accused nos.2 and 3 were sentenced to
pay a fine of Rs.15,000/- each for the offence. Default
sentences were provided for non-payment of fines. Accused
no.1 was further sentenced to suffer rigorous imprisonment for
two years and to pay a fine of Rs.2,000/- for the offence
punishable under Section 25(1B)(a) of the Arms Act. By the
impugned judgment, a Division Bench of the High Court has
confirmed the conviction and sentence of the appellants.
2. According to the case of the prosecution, the deceased
Nagender Yadav was the husband of PW-1 Bindu. Accused
no.1 used to stay in the same locality as PW-1 and the
deceased. The other two accused used to roam around with
accused no.1 in the locality and therefore, all three were known
to the PW-1 and her deceased husband. According to the
prosecution’s case, in Diwali of the year 2010, accused no.1
came to the house of the deceased and called the deceased
outside the house. Accused no.1 was carrying a beer bottle at
that time. He broke the said bottle on the door of the house of
the deceased and left the house after abusing and threatening
the deceased.
th
3. The incident happened on the intervening night of 15
th
and 16 May 2012. PW-1, along with her minor son, aged 10
years, and the deceased were sleeping in their house. Around
Criminal Appeal No.2685 of 2023 etc. Page 2 of 11
th
12:30 am on 16 May 2012, PW-1 heard a sound like a cracker.
She woke up and heard her husband (deceased) calling her.
She saw the deceased coming from the gate of the house in a
bending position and was crying in pain. She turned on the
light and found that the blood was oozing out of the abdomen
of the deceased. Then she started weeping. The deceased upon
asking PW-1 to call their family members, disclosed to her that
accused no.1 had shot him when the accused nos.2 and 3 were
also present with the accused no.1. Thereafter, PW-1 raised
alarms, when PW-2 Ram Singh Yadav, who was the brother of
the deceased and his sister’s son Angad (PW-10), who were
neighbours of the deceased, rushed there. The deceased was
taken to Sanjay Gandhi Memorial Hospital, from where he was
shifted to RML Hospital. After a few minutes, he was declared
dead.
4. The prosecution mainly relies upon the dying declaration
of the deceased made before PW-1 and PW-2 as well as recovery
of the firearm at the instance of the accused no.1. Though it
was claimed that PW-10 Angad was also present when the
dying declaration was made by the deceased, to that extent PW-
10 has not supported the prosecution. The Trial Court and the
High Court have accepted the prosecution's case of dying
declaration.
SUBMISSIONS
5. The learned counsel appearing for the appellants has
taken us through the notes of evidence of the material
prosecution witnesses. His first submission is that the
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photographs on record show that there was a big iron gate to
the deceased's house; therefore, the theory that the accused
entered the house at midnight cannot be accepted. He
submitted that, as seen from the evidence of PW-1, there was
darkness where the deceased was attacked, and she had to
turn on the light. Therefore, it is unlikely that the deceased may
have recognised his assailants in the darkness. It was
submitted that when the deceased was taken to Sanjay Gandhi
Memorial Hospital, he was conscious and was able to walk. No
dying declaration was recorded by the doctor who examined
him. He pointed out that the report of the Forensic Science
Laboratory (FSL) could not answer the question of whether the
bullet recovered from the body of the deceased was fired from
the weapon recovered at the instance of accused no.1. The
learned counsel submitted that apart from the fact that the
theory of dying declaration is doubtful and is not proved, even
otherwise the appellants are entitled to the benefit of the doubt.
The learned counsel for the respondent invited our attention to
the evidence of the material prosecution witnesses and
supported the impugned judgments.
CONSIDERATION OF SUBMISSIONS
6. We have perused the notes of evidence and other
documents on record. Firstly, we turn to the evidence of PW-1
Bindu, the widow of the deceased. The English version of the
relevant part of her examination-in-chief reads thus:
“ On the intervening night of 15/16.05.12,
I along with my husband and other family
members were sleeping in our house
Criminal Appeal No.2685 of 2023 etc. Page 4 of 11
bearing no. P-7/164. I was sleeping on the
sofa with my minor son Shashank aged
about 10 years while my husband was
sleeping in the same room. At about 12:30
a.m ., I heard the sound like that of a
cracker. I immediately woke up. I saw
that my husband was calling me by my
name Bindu- Bindu and he was coming
from the gate side in bending position
and he was crying with pain. I switched
on the light and I saw blood was oozing
out from the abdomen of my husband. I
started weeping. I asked my husband
about the injury then my husband told
me to call my family members and told
me that accused Dinesh @ Khali had
shot him. He also told me that his two
associates namely Deepak Kumar @
Chintu and Suresh @ Hanumant were
also present with the accused Dinesh
Kumar @ Khali at that time. I raised
alarm and my tenants and neighbours
reached there along with my brother-in-
law (Jeth) Ram Singh and my nephew
(Bhanja) Angad Yadav. I requested my
Jeth and neighbours to remove my
husband immediately to some hospital.
Thereafter, my husband was removed from
spot by my brother-in-law Ram Singh and
my nephew Angad on the motorcycle of my
nephew Angad. My brother-in-law Ram
Singh and my Bhanja were sleeping in
other room of my house when I raised
alarm. Thereafter, I left my house on foot
for hospital and I reached Sanjay Gandhi
Memorial Hospital and I came to know
Criminal Appeal No.2685 of 2023 etc. Page 5 of 11
there that my husband has been referred
to some other hospital. Thereafter, I left
SGM Hospital for my house. When I was on
the way, police met me. I told the police the
same facts which I have deposed today and
told the name of all three accused persons
to police. ”
(emphasis added)
7. Scrutiny of the cross-examination of PW-1 shows that
there is no contradiction or omission brought on record as
regards the version mentioned above. PW-1 stated that some
other tenants came there apart from PW-2 and PW-10, but she
could not recollect their names. She stated that she did not
disclose the names of the accused persons to the persons who
came there, considering the condition of the deceased. She
stated that when her husband was taken to the hospital, she
was weeping. She stated that she also reached Sanjay Gandhi
Hospital on foot, when she was told that her husband was
taken to some other hospital. Then she returned to her house
when police enquired with her, and she disclosed the names of
th
the accused to them. Her statement was recorded on 16 May
2012 in the afternoon. She denied the correctness of the
suggestion that her deceased husband was suspecting that she
was having illicit relations with PW-10 Angad. The appellants
contended that the gate of the deceased's house was a huge
iron gate. Hence, the story that the appellants opened it and
entered the house cannot be accepted. It is pertinent to note
that in the cross-examination of PW-1, it was brought on record
that the gate of her home was open. She stated that she put
Criminal Appeal No.2685 of 2023 etc. Page 6 of 11
on a light in the house when she saw the deceased coming
towards her. It was tried to be contended that there was
darkness near the gate. But in the cross-examination of PW-
1, it was brought on record that there was a street light at some
distance.
8. According to us, the testimony of PW-1 appears natural.
No material contradictions and omissions were brought on
record in her cross-examination. No suggestion was given to
the witness that the deceased was not in a position to speak.
She identified the accused persons who were known to her in
the Court. Hence, her evidence is worthy of acceptance.
th
9. PW-2 stated that at 12.30 am on 16 May 2012, when he
was sleeping inside the house, he heard cries coming from the
side of the lane. He came out and recognised the voice of the
deceased. Even PW-10 Angad came there. PW-1 instructed him
to get the deceased to the hospital. He stated that PW-1 was
weeping. Therefore, he and PW-10 took the deceased to Sanjay
Gandhi Hospital on a motorcycle driven by PW-10. The
deceased was made to sit between him and PW-10 on the
motorcycle. His version of the dying declaration reads thus:
“On the way to hospital, I asked
from Nagender as to how he
received injuries. My brother
Nagender told me that accused
Dinesh had caused bullet injury to
him and accused Suresh and Deepak
were also with him at the time of
incident. Doctor started treatment of
my brother in emergency ward and
doctor told us that the condition of
Criminal Appeal No.2685 of 2023 etc. Page 7 of 11
Nagender is very serious and
suggested us to take him to RML
Hospital. Doctor obtained my
signatures on the MLC of Nagender.
Thereafter, I along with Nephew Angad
started searching for a conveyance to
remove my injured brother to RML
Hospital. But we did not find any
conveyance in the hospital at that time
and we told this fact to the doctor.
Thereafter, doctor arranged an official
Ambulance from the hospital and my
brother Nagender was referred to RML
Hospital and he was shifted to RML
Hospital in the said Ambulance and we
got him admitted there. My nephew
Angad also reached in RML Hospital
on his motorcycle. During treatment
my brother Nagender had expired in
RML Hospital. ”
(emphasis added)
10. No suggestion was given to the witness that the deceased
was not in a position to speak. In the cross-examination, he
denied that there used to be a quarrel between the deceased
and PW-1, as the deceased had a suspicion about the
relationship between PW-1 and PW-10 Angad. He denied the
correctness of the said suggestion. There is one omission
brought on record in the cross-examination. The omission is
about his statement in the examination-in-chief that, on being
asked by the doctor, the deceased said that accused no.1 had
shot him. However, there is no omission or contradiction about
his statement in the examination-in-chief that on the way to
the hospital, the deceased told him that accused no.1 had shot
Criminal Appeal No.2685 of 2023 etc. Page 8 of 11
him, and the other two accused were present along with
accused no.1 at that time. His testimony appears to be reliable.
11. Now, we come to evidence of PW-10. PW10, in his
examination-in-chief, just mentioned that the deceased
informed PW2 about the assailants while he was riding the
motorcycle to the hospital. In the examination-in-chief, he
deposed that he, along with PW-2, took the injured deceased
on his motorcycle to Sanjay Gandhi Hospital. However, he had
not deposed to the dying declaration made by the deceased.
Neither PW-1 nor PW-2 have stated that any dying declaration
was made by the deceased to PW-10. Therefore, in the cross-
examination, he stated that the deceased had not disclosed
anything in his presence.
12. PW-23 Deepak did not support the prosecution. He was
cross-examined by the public prosecutor with the permission
of the Court.
13. Now, we come to the evidence of recovery of the weapon
of assault at the instance of the accused no.1. The weapon was
a country-made pistol of .315 bore. The country-made pistol
and one cartridge were sent to FSL. PW-15 V.R. Anand, a
ballistic expert, was examined. He stated that the country-
made pistol was in working condition and that the test fire was
successfully conducted. An empty cartridge was fired.
However, he stated that no opinion can be given whether the
bullet marked as Exhibit EB-1, which was found in the body of
the deceased, had been fired through the country-made pistol.
Criminal Appeal No.2685 of 2023 etc. Page 9 of 11
14. Thus, the evidence of PW-1 and PW-2 on the dying
declaration made by the deceased is consistent and very
reliable. Their version of the dying declaration has not been
shaken in the cross-examination. As both the witnesses are
close relatives of the deceased, we have closely scrutinised their
testimony. PW-10 has not fully supported the prosecution. As
the evidence of the other two witnesses is worthy of acceptance,
the prosecution’s case cannot be disbelieved on the ground that
PW-10 did not support the prosecution.
15. Once the dying declaration made by the deceased is
proved, the fact that the ballistic expert could not give a definite
opinion on the question of whether the cartridge recovered from
the body of the deceased was fired by the revolver recovered at
the instance of the accused no.1, is not relevant at all. Once it
is held that the dying declarations are duly proved, this lacuna
is insignificant.
16. Accused nos. 2 and 3 were present and were
accompanying accused no.1 when accused no.1 shot the
deceased. Some arguments were made that there was darkness
near the gate of the house of the deceased, and therefore, the
deceased may not have identified the accused. However, we
cannot ignore that the accused were known to the deceased for
quite some time. Since the deceased knew the three accused
persons, it is not possible to accept the contention that the
deceased may not have recognised them. Moreover, it is
brought on record in the cross-examination of PW-1 that there
Criminal Appeal No.2685 of 2023 etc. Page 10 of 11
was a street light nearby. The incident happened at the gate of
the house of the deceased.
17. Looking at the evidence on record, Section 34 of IPC has
been correctly applied to the facts of the case. From the
conduct of the accused persons reflected from the evidence on
record, common intention on their part was duly proved.
18. Therefore, we find no error in the view taken by the Trial
Court and the High Court. Accordingly, the appeals are
dismissed. We grant time of one month to the accused to
surrender for undergoing their remaining sentence. We make
it clear that as and when the appellants-accused become
eligible for consideration of grant of permanent remission, their
cases shall be considered by the respondent government as
expeditiously as possible.
.……………………….J.
(Abhay S Oka)
.……………………….J.
(Ujjal Bhuyan)
New Delhi;
March 05, 2025.
Criminal Appeal No.2685 of 2023 etc. Page 11 of 11