Constable 907 Surendra Singh vs State Of Uttarakhand

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 355 OF 2013

CONSTABLE 907 SURENDRA SINGH & ANR. …APPELLANT(S) VERSUS

STATE OF UTTARAKHAND …RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 788 OF 2013

ASHAD SINGH NEGI …APPELLANT(S) VERSUS

STATE OF UTTARAKHAND …RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. These appeals challenge the judgment and final order

dated 27th December 2012 passed by the High Court of

Uttarakhand at Nainital by which the High Court dealt with

three Criminal Appeals which had been filed challenging the Signature Not Verified Digitally signed by DEEPAK SINGH Date: 2025.01.28 12:51:10 IST Reason:

judgment and order dated 6th September 2006 passed by the

1 learned Sessions Judge, Dehradun1. The first set of appeals

before the High Court being Criminal Appeal Nos. 217 of 2006

and 218 of 2006 challenging the judgment and order of the

trial court had been preferred by accused No.1-Jagdish Singh

by which he had been convicted for the offence punishable

under Section 302 read with Section 34 of the Indian Penal

Code, 18602 and Section 27(1) of the Arms Act, 19593 and

sentenced to undergo imprisonment for life. The second set of

appeal being Government Appeal No. 100 of 2008 before the

High Court was filed by the respondent-State of Uttarakhand

against the present appellants namely, Constable 907

Surendra Singh, Constable 192 Surat Singh and Ashad Singh

Negi (accused Nos. 4, 2 and 3 respectively) challenging the said

judgment of the trial court by which they had been acquitted

of the charges under Section 302 read with Section 34 of the

IPC.

2. The High Court dismissed the first set of criminal appeals

preferred by accused No.1-Jagdish Singh thereby confirming

the judgment and order of conviction and sentence passed by

1 Hereinafter referred to as the ‘trial court’. 2 For short ‘IPC’.

3 For short ‘Arms Act’

2 the trial court. However, the High Court allowed the

Government Appeal preferred by the respondent-State of

Uttarakhand and set aside the order of acquittal qua the

appellants herein and convicted them for the offence

punishable under Section 302 read with Section 34 of the IPC

and sentenced them to undergo imprisonment for life.

Aggrieved by the same, the present appeals have been filed by

the appellants herein.

3. Shorn of details, the facts which lead to the present

appeals are as follows:-

3.1 On 15th November 2004, the SHO of the Police Station,

Rishikesh received information that illegal liquor was being

smuggled in a Maruti Car bearing registration No. DL2CR4766.

On receipt of such information, at about 8:55 p.m., Head

Constable of the Police Station Jagdish Singh along with the

other accused-appellants Constable Surendra Singh,

Constable Surat Singh and Constable Driver Ashad Singh set

out in a silver-coloured Indica car to intercept the

aforementioned Maruti car. At around 8:30 p.m., the police

personnel spotted a Maruti car near IDPL Gate. Constable

Ashad Singh, who was driving the car, and Head Constable

3 Jagdish Singh attempted to stop the car by overtaking it and

indicating to the driver of the Maruti car to halt. However,

when the driver of the Maruti car failed to stop his car, Head

Constable Jagdish Singh fired a single shot from 0.38 bore

revolver that he was carrying with himself. The said shot hit

the co-passenger seated in the front seat of the Maruti car in

her temporal region, eventually leading to her death.

3.2 As a corollary to this incident, on 16th November 2004,

one Sanjeev Chauhan lodged a written complaint at Police

Station, Rishikesh. According to the complaint, the

complainant was driving down from Roorkee to Rishikesh in

his Maruti car on 15th November 2004. He was in the driving

seat while his wife Manisha (hereinafter referred to as ‘the

deceased’) was sitting in the front passenger seat and his sister

Km. Bharti and his daughter Km. Bhumika were sitting in the

rear seats. Having started at around 6:45 p.m. from Roorkee,

their car crossed Shyampur Railway Crossing which was close

to IDPL gate at about 8:30 p.m. when a silver-coloured Indica

car without a registration plate overtook the car of the

complainant. The occupants of the Indica car who were

dressed in police uniforms, indicated to the complainant to

4 stop his car. However, when the complainant failed to comply,

a bullet came to be fired by one of the occupants of the Indica

car. The said bullet hit the wife of the complainant on her

temporal region. Upon the occurrence of the incident, a crowd

gathered at the spot and the complainant was informed by the

onlookers that one of the occupants of the Indica car was

Jagdish Singh who was posted as Head Constable at Police

Station, Rishikesh. With the aid of the assembled bystanders,

the complainant took his wife to Government Hospital,

Rishikesh, where she was declared ‘brought dead’.

3.3 Thereafter, the complainant went to lodge a complaint at

Police Station Kotwali, Rishikesh where he saw the Indica car

parked within the premises of the Police Station. He telephoned

his brother Rajeev who arrived at the Police Station with their

uncles Jugal Kishore and Vijay Chauhan. On the basis of the

complaint dictated by the complainant and scribed by Vijay

Chauhan, a First Information Report being Case Crime No. 455

of 2004 was registered at the aforesaid Police Station against

Head Constable Jagdish Singh and other unknown police

constables for the offence punishable under Section 302 of the

IPC.

5 3.4 The dead body of the deceased was sent for a post-

mortem and according to the Post-Mortem Report the cause of

death was cranio-cerebral damage following a bullet injury.

3.5 Upon the conclusion of the investigation and on receiving

permission from the S.S.P., Dehradun to prosecute the

accused persons, a charge sheet (Ext. Ka-27) was preferred

against the four accused persons for the offences punishable

under Section 302 read with Section 34 of the IPC. A separate

charge sheet (Ext. Ka-28) was preferred against Head

Constable Jagdish Singh for the offence punishable under

Section 27(3) of the Arms Act.

3.6 As the case was exclusively triable by the Sessions Court,

the learned Chief Judicial Magistrate, Dehradun committed

the case of the four accused persons to the trial court, leading

to the registration of S.T. No. 50 of 2005. The learned Chief

Judicial Magistrate, Dehradun further committed the case of

accused No.1-Jagdish Singh qua the separate charge sheet

before the trial court, leading to the registration of S.T. 108 of

2005. Both the aforementioned Sessions Trials were

consolidated and numbered as S.T. No. 50 of 2005.

6 3.7 At the conclusion of the trial, the trial court convicted

accused No.1-Jagdish Singh as aforementioned and sentenced

him to imprisonment for life while acquitting the three other

accused-appellants since the prosecution had failed to prove

the case beyond reasonable doubt insofar as they were

concerned.

3.8 Being aggrieved thereby, accused No.1-Jagdish Singh

preferred two criminal appeals before the High Court against

the order of his conviction and sentence. The respondent-State

also preferred a criminal appeal before the High Court against

the acquittal of the other accused-appellants.

3.9 The High Court by the impugned judgment dismissed the

criminal appeals preferred by accused No.1-Jagdish Singh and

allowed the criminal appeal preferred by the respondent-State

of Uttarakhand.

3.10 Being aggrieved thereby three Criminal Appeals under

Section 379 of the Code of Criminal Procedure, 19734 came to

be filed before this Court. Criminal Appeal No. 355 of 2013 was

filed by Constable 907 Surendra Singh and Constable 192

4 For short ‘Cr.P.C.’

7 Surat Singh. Criminal Appeal No. 788 of 2013 was filed by

Ashad Singh Negi. Finally, Criminal Appeal Nos. 1425-1426 of

2015 were filed by Head Constable Jagdish Singh.

4. This Court by order dated 15th July 2013 admitted

Criminal Appeal Nos. 355 of 2013 and 788 of 2013 and granted

bail to the appellants in both the appeals.

5. During the hearing of the appeals, we were informed that

Head Constable Jagdish Singh had passed away. Accordingly,

on 16th January 2025 Criminal Appeal Nos. 1425-1426 of

2015, preferred by him, were disposed of as abated.

6. We have heard Mr. Devadatt Kamat, learned senior

counsel appearing on behalf of the appellants and Mr. Rajeev

Kumar Dubey, learned counsel appearing on behalf of the

respondent-State.

7. Mr. Devadatt Kamat submits that the Division Bench of

the High Court has grossly erred in convicting the appellants

with the aid of Section 34 of the IPC. It is submitted that the

learned trial judge on an elaborate consideration of the

evidence had come to a considered opinion that insofar as the

present appellants are concerned there is no evidence to show

that the present appellants had shared a common intention

8 with the accused No.1-Jagdish Singh. It is submitted that the

allegation of alleged assault made by Sanjeev Chauhan, PW-1

(husband of the deceased) and Km. Bharti, PW-2 (sister-in-law

of the deceased) in their evidence for the first time before the

Court cannot be relied on. Insofar as the said alleged assault

is concerned, it is submitted that though the said incident has

taken place in public, no independent witness has been

examined by the prosecution. Learned Senior Counsel relied

on the judgment of this Court in the case of Gadadhar

Chandra v. State of West Bengal5 in support of his

submissions.

8. It is further submitted that the interference in the

judgment of acquittal by the learned trial judge would have

been warranted by the High Court only in the event the view

taken by the learned trial judge was found to be perverse or

impossible. It is submitted that no perversity or impossibility

could be noticed in the view taken by the learned trial judge

and as such the interference by the High Court in an appeal

against the acquittal was totally unwarranted.

5 (2022) 6 SCC 576

9

9. As against this, the learned counsel for the respondent-

State submits that the Division Bench of the High Court has

given sound reasons for reversing the order of acquittal and as

such no interference is warranted in the present appeals.

10. We have perused the entire material on record with the

assistance of the learned counsel for the parties.

11. Recently, in the case of Babu Sahebagouda

Rudragoudar and others v. State of Karnataka6, a Bench

of this Court to which one of us was a Member (B.R. Gavai, J.)

had an occasion to consider the legal position with regard to

the scope of interference in an appeal against acquittal. It was

observed thus:

“38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging acquittal of the accused recorded by the trial court.

39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp.

482-83, para 29)

6 (2024) 8 SCC 149

10 “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words :

(Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 :

(2007) 2 SCC (Cri) 325] , SCC p.

432, para 42)

‘42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such

11 power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to

12 come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the

13 evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.’ ”

40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows : (SCC p. 584, para 8)

“8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence;

8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;

8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;

8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was

14 also possible; and

8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”

41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:

41.1. That the judgment of acquittal suffers from patent perversity;

41.2. That the same is based on a misreading/omission to consider material evidence on record; and

41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.”

12. It could thus be seen that it is a settled legal position that

the interference with the finding of acquittal recorded by the

learned trial judge would be warranted by the High Court only

if the judgment of acquittal suffers from patent perversity; that

the same is based on a misreading/omission to consider

15 material evidence on record; and that no two reasonable views

are possible and only the view consistent with the guilt of the

accused is possible from the evidence available on record.

13. In the instant case, the learned trial judge on the basis of

ocular testimony of the eyewitnesses has held that the accused

No.1-Jagdish Singh is guilty of the offence punishable under

Section 302/34 IPC as well as under Section 27(1) of the Arms

Act. Since the appeal of the said accused No.1-Jadgish Singh

is disposed of as abated, we did not go into the findings against

the said accused.

14. The learned trial judge while recording the finding of

acquittal insofar as the present appellants are concerned, has

come to the following conclusions:

(i) That these three accused (appellants herein) were in

the car and the accused No.1-Jagdish Singh was

senior to them, and that they were under the

command of their senior officer;

(ii) Accused Ashad Singh had admitted this aspect and

had stated that he was driving the car under the

orders of his superior officer;

16

(iii) The remaining two accused had raised a plea of

alibi, which was based on certain entries in the

General Diary (G.D.)

(iv) That accused Nos. 2, 3 and 4 (the appellants herein)

were not named in the report;

(v) From the evidence of Rajendra Singh Nagarkoti,

P.W.9 as well as identification memo Exhibit Ka-13

prepared by the Executive Magistrate Bishan Singh

Bisht, it was clear that only one accused, namely,

Ashad Singh could be identified and that too only by

one witness i.e. by P.W.1;

(vi) That the identification of the accused by only one

witness was not sufficient to come to a conclusion

of guilt against the accused.

15. Upon consideration of these factors, the learned trial

judge came to a conclusion that even if it was assumed that

the remaining three accused had accompanied accused No.1-

Jagdish Singh, there was no evidence to come to a conclusion

that accused Nos. 2, 3 and 4 (the appellants herein) who were

in car with accused No.1-Jagdish Singh had shared a common

intention with him to fire upon or to kill the deceased.

17

16. The learned trial judge, therefore, found that the

prosecution had failed to prove the mental involvement of

accused Nos. 2, 3 and 4 (the appellants herein) with accused

No.1-Jagdish Singh beyond the shadow of reasonable doubt.

17. However, this well-reasoned finding of the learned trial

court has been upset by the High Court on the ground that the

remaining three accused were sitting in the same vehicle along

with accused No.1-Jagdish Kumar was sufficient to convict

them with the aid of Section 34 of the IPC.

18. By now it is a settled principle of law that for convicting

the accused with the aid of Section 34 of the IPC the

prosecution must establish prior meetings of minds. It must

be established that all the accused had preplanned and shared

a common intention to commit the crime with the accused who

has actually committed the crime. It must be established that

the criminal act has been done in furtherance of the common

intention of all the accused. Reliance in support of the

aforesaid proposition could be placed on the following

judgments of this Court in the cases of:

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(i) Ezajhussain Sabdarhussain and another v.

State of Gujarat7;

(ii) Jasdeep Singh alias Jassu v. State of Punjab8;

(iii) Gadadhar Chandra v. State of West Bengal

(supra); and

(iv) Madhusudan and others v. State of Madhya

Pradesh9.

19. In the present case, as observed by the learned trial judge,

the prosecution has failed to place on record any evidence to

show that the accused Nos. 2, 3 and 4 (the appellants herein)

had common intention with accused No.1-Jagdish Singh prior

to the accused No.1-Jagdish Singh’s shooting at the deceased

resulting in her death.

20. In the result, we pass the following order:

(i) The appeals are allowed.

(ii) The judgment and order of the High Court of

Uttarakhand at Nainital in Government Appeal No.

100 of 2008 is quashed and aside.

7 (2019) 14 SCC 339 8 (2022) 2 SCC 545 9 2024 SCC OnLine SC 4035

19

(iii) The judgment and order dated 6th September 2006

passed by the learned Sessions Judge, Dehradun in

Sessions Trial No.50 of 2005 is affirmed.

(iv) The appellants herein are on bail. Their bail bonds

shall stand discharged.

(v) Pending application(s), if any, shall stand disposed

of.

..............................J (B.R. GAVAI)

……………..............................J (AUGUSTINE GEORGE MASIH)

NEW DELHI;

JANUARY 28, 2025

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