Surender Singh vs State(Nct Of Delhi)

2024 INSC 462 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 597 OF 2012

SURENDER SINGH …APPELLANT VERSUS

STATE (NCT OF DELHI) …RESPONDENT

JUDGMENT

SUDHANSHU DHULIA, J.

1. The appellant before this Court has challenged the order of

the High Court (dated 18.05.2011) which has dismissed his

appeal while upholding his conviction and sentence by the

Trial Court for offences under Sections 302 and 307 of the

Indian Penal Code, for which he has been sentenced for life

imprisonment and 7 years of rigorous imprisonment

respectively.

2. We have heard the learned counsel for the appellant as well

Signature Not Verified as for the State at length. Digitally signed by Jagdish Kumar Date: 2024.07.03

3. As the facts of the case would reveal the present case is of 16:14:33 IST Reason:

a brazen murder, committed inside a Police Station in Delhi. 2

The prosecution case is that the appellant, who was posted

as a police guard at Mayur Vihar Police Station, Delhi,

executed this murder inside the police station, while he was

on duty!

4. The deceased was married to the appellant’s first cousin

and was also his neighbour. The prosecution case is that

the deceased had an illicit relationship with the wife of the

appellant. There are more than one witnesses to the fact

that the deceased and the appellant were last seen together

in conversation with each other inside the police station

even minutes before these witnesses saw the appellant

killing the deceased with his official 9 m.m. carbine.

5. An FIR was lodged at Police Station Mayur Vihar, New Delhi

on 30.06.2002 at 2:30 pm, under Sections 302/307 IPC on

the narration of PW-2 who was posted at the Police Station,

Mayur Vihar, New Delhi as Head Constable at the relevant

point of time. PW-2 states that on the date of the incident

she reached the Police Station at around 11.30 am and saw

the appellant talking to the deceased. She further states

that at around 11.40 am, she heard sounds of fire and then

saw the deceased running towards the Duty Officer’s room; 3

he was bleeding with his hands held up in the air. The

appellant was seen firing at the deceased from his Carbine.

When the firing stopped, the deceased was seen lying

outside the duty officer's room, bleeding profusely. The

appellant was apprehended along with his carbine by the

police staff, and PW-2 who was also injured in the firing was

taken to the LBS Hospital where she received medical aid,

and later lodged the FIR.

6. The police after its investigation filed chargesheet and the

case was committed to Sessions, where charges were

framed under Sections 302/307 of IPC against the present

appellant. The prosecution examined as many as 27

witnesses. The accused, after giving his statement under

Section 313 CrPC, had also examined a witness as DW-1.

The Trial Court ultimately convicted and sentenced the

appellant under Sections 302 and 307 IPC as already stated

above.

7. Strangely, and for reasons best known to the prosecution,

it examined PW-6 who is the brother of the appellant and

PW-25 who is wife of the appellant, as prosecution

witnesses. Although these two witnesses have supported 4

the case of the prosecution to the extent that they establish

that the deceased was having an extra marital affair with

the appellant’s wife, yet both of them added in their

testimony that it was the deceased who was determined to

kill the appellant!

8. PW-25, who is the wife of the appellant, says that, minutes

prior to the incident, the deceased had come to her place

and had warned her that he was going to the Police Station

to kill her husband! PW-6 is also a witness to this

expression on the part of the deceased.

9. The accused/appellant who as we shall see, has neither

denied the incident nor the fact that he killed the deceased.

His argument is that he did it as a matter of self-defence,

and in the alternative if self-defence is not accepted by the

Court, then it was a case of grave and sudden provocation

at best, which led to the death of the deceased at the hands

of the appellant. In other words, if at all, the appellant can

be punished only for culpable homicide not amounting to

murder.

It has been argued before us that on the fateful day

(i.e. 30.06.2002), it was the deceased who had come to the 5

police station to kill the appellant and the appellant used

his weapon only in self defence, but unfortunately the

deceased was killed.

The evidence of PW-25 and PW-6 which we have just

referred apparently supports this theory, to the extent that

the deceased was determined to kill the appellant. The

appellant states in his Section 313 Cr.P.C. statement as

under :-

"…I was doing my duty as a santari. At about11.40 Satish (deceased) who was my relative came there. I had half closed the doors of PS as per directions of SHO. He opened the doors by hitting car against these. He parked his car inside the PS. He started shouting at me. I took him towards near police quarters. He pounced at me. I forbade him from doing so. I took him towards duty officer's room. I tried to snatch my carbine from his hand. In that process firing took place. Magazine fell down. I tried to pick it up and fit in the carbine. In that process it fired four-five times in air. Satish tried to snatch said carbine from me and in that process was hit by bullets. The carbine fired in rapid action from gate of PS up to police quarters. When we were near duty officer’s room the carbine was set at automatic mode. It fired which hit deceased Satish as well as walls, tube lights and windows of duty officer’s room.”

The entire case of the defence is built on the above

statement of the accused appellant, which is that it was the 6

deceased who had come rushing to the Police Station on that

fateful day knowing very well that the appellant was posted

there as a guard. He then tried to snatch the weapon from

the appellant and in this scuffle, shots were fired from the

weapon, which was an accident, which ultimately led to the

death of the deceased. This, in short is the case of the

defence.

All the same, this trumped up story did not find favour

with the trial court and the appellate court and

understandably so as the prosecution has an overwhelming

evidence to the contrary, which only points towards a

dastardly murder at the hands of the present appellant.

The prosecution case is primarily based on the

statement of the eye witnesses present in the Police Station

itself and mainly PW-2 who is a lady head constable and also

the complainant. This witness has remained steadfast to her

version of the incident, which was given in the first

information report lodged by her; and later in her

examination-in-chief and cross-examination, during the

trial. She is an extremely credible and trustworthy witness

and the veracity of her statement and deposition establishes 7

the guilt of the accused beyond reasonable doubt, and has

its corroboration with other evidences, including ocular

evidences of PW-1, PW-14 and PW-17, who were also

constables or head Constables posted at Police Station

Mayur Vihar, New Delhi, and were present at the Police

Station at the relevant time. Additionally, this is also

confirmed by the forensic evidence which was gathered by

the Police during investigation from the site itself, to which

we shall refer in a while.

PW-2 was put to a lengthy cross-examination by the

defence. In the cross-examination the defence made every

possible attempt to cast doubt on the presence of this

witness at the Police Station, but this was all in vain since

there are more than one witnesses in this case which clearly

establish the presence of PW-2 at the Police Station. Her

presence is established by the other witnesses such as PW-

1, PW-14 and PW-17, who were also Police constables posted

at the same Police Station. Most importantly her presence is

established by the fact that this witness (PW-2) is also an

injured witness as she had sustained bullet injuries on her

left shoulder. Her medical examination was done on the 8

same day and the following injuries were found :

1. Lacerated wound 2x2 cm over left (L) shoulder near lateral end of clavicle, penetrating anterior aspect, fresh, oozing of blood.

2. Lacerated wound left (L) shoulder, posterior aspect near lateral end of clavicle, 3x3 cm, fresh, oozing of blood.

PW-11, Head Constable Jai Prakash, is the one who took

PW-2 to the LBS hospital and also testified before the court

in this regard. PW-27, the SHO of the police station who

investigated the case, also testified that he reached the

police station right after the incident and then rushed to the

hospital where he recorded the statement of PW-2.

10. In her examination-in-chief PW-2 says that on 30.06.2002,

she was posted at Police Station, Mayur Vihar where she

was to work as duty officer from 9 a.m. to 5 p.m., but as

she had some personal work in the morning that day, she

had taken prior permission from the SHO to arrive late.

She hence reached the P.S. at 11.35 a.m. and at the

gate, she saw the appellant-Surender (whom she identifies

in the court), and who was posted as guard in the same

Police Station, talking to a stranger near a corner of the

premises. She then went straight to her duty room and 9

while she was talking to the Head Constable Om Pal (PW-1)

from whom she had to take the charge, and where

constable Vinod (PW-17) and DHG Jai Singh (PW-5) were

also present along with Munshi Gulzari Lal, she suddenly

heard sounds of bullet shots in the compound of the Police

Station. Then she saw the person with whom the appellant

was having a conversation (i.e. the deceased) rushing

towards the duty officers’ room with his hands up in the

air; and he was bleeding. She also saw Constable Surender

(i.e. the appellant before this Court), chasing this person from

behind, still firing from his 9mm carbine, aiming at the

deceased. She as well as the head Constable Om Prakash,

Constable Vinod and DHG Jai Singh bent down and took

shield in order to avoid stray bullets. She then saw the

deceased lying outside the room, bleeding profusely. By this

time, she had realized that she too had received bullet

injuries on her left shoulder. She was then taken to LBS

Hospital by Head Constable Jai Prakash. It was in the

hospital that she was informed that the deceased (Satish)

was a relative of Surender and that he is now dead, due to

the bullet injuries sustained in the firing. 10

11. The defence did not cross-examine this witness immediately

after her examination-in-chief, but sought that the cross

examination be deferred, which was done and she was

cross-examined only on 30.11.2004, which is more than

two months after her examination-in-chief. We may just

stop here for a while only to sound a note of caution. Such

long adjournment as was given in this case after

examination-in-chief, should never have been given.

Reasons for this are many, but to our mind the main reason

would be that this may affect the fairness of the trial and

may even endanger, in a given case, the safety of the

witness. As far as possible, the defence should be asked to

cross examine the witness the same day or the following

day. Only in very exceptional cases, and for reasons to be

recorded, the cross examination should be deferred and a

short adjournment can be given after taking precautions

and care, for the witness, if it is required. We are

constrained to make this observation as we have noticed in

case after case that cross examinations are being adjourned

routinely which can seriously prejudice a fair trial. 11

12. This Court had, on more than one occasion, condemned

this practice of the trial court where examinations are

deferred without sufficient reasons. We may refer here to

some cases, which are State of U.P v. Shambhu Nath

Singh (2001) 4 SCC 667; Ambika Prasad v. State (Delhi

Admn.) (2000) 2 SCC 646; Mohd. Khalid v. State of W.B.

(2002) 7 SCC 334.

13. As we have said cross examination can be deferred in

exceptional cases and for reasons to be recorded by the

Court, such as under sub-section 2 of Section 231 of CrPC1

but even here the adjournment is not to be given as a matter

of right and ultimately it is the discretion of the Court. In

State of Kerala v. Rasheed (2019) 13 SCC 297, this Court

has set certain guidelines under which such an

adjournment can be given. The emphasis again is on the

fact that a request for deferral must be premised on

sufficient reasons, justifying the deferral of cross-

1 231. Evidence for prosecution.—(1) On the date so fixed, the Judge shall proceed to take

all such evidence as may be produced in support of the prosecution.

(2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.

12

examination of the witness.

As we could see from the records in the present case the

cross examination of PW-2 was deferred precisely on

grounds referred in sub-section (2) of Section 231 of CrPC.

The defence requested to examine PW-2 with another

prosecution witness (Vinod-PW-17). Yet the records of the

case also reveal that though the cross-examination was

deferred yet the other witness (PW-17) was examined much

later, nearly a year after the cross examination of PW-2. We

only wanted to record this cautionary note to make our

point that this practice is not a healthy practice and the

Courts should be slow in deferring these matters. The

mandate of Section 231 of Cr.PC and the law laid down on

the subject referred above must be followed in its letter and

spirit.

Thankfully, in the case at hand, the deferred cross-

examination of PW-2 has not affected the course of the trial.

This witness has remained consistent.

14. PW-19 is Dr. S.B. Jangpangi, Casualty Medical Officer

posted at LBS Hospital Delhi, who had examined PW-2 as

she had received bullet injuries on that fateful day. PW-19 13

in his statement mentions that two injuries were found on

Panwati’s (PW-2) body. PW-19 had also examined the

deceased who was declared dead by him and found his body

riddled with bullet injuries.

15. PW-1, Ompal Singh, who was posted as head constable in

P.S. Mayur Vihar is another key prosecution witness. He

says that he was working as duty officer on 30.06.2002 in

place of WHC Panwati (PW2). After PW-2 reported for her

duties Constable Vinod (PW-17), DHG Jai Singh and PW-1

were also in the duty officers’ room. He recounts that on the

day of the incident he heard sounds of firing at about 11.35

a.m. and saw a person with blood-stained clothes (i.e. the

deceased) trying to reach the duty officers’ room. He was

being chased by the appellant, who was identified by this

witness in court. He states that the police staff tried to save

their own life in the duty officer’s room and then saw the

deceased lying on the ground. Constable Panwati (PW-2)

also sustained bullet injuries in this firing. He then gave a

wireless message of the incident to the SHO. This witness

was cross examined later but again nothing has come in the

cross to doubt the statement of this witness. 14

16. PW-11 and PW-17 were again, Head Constable and

Constable respectively, who were posted at this police

station on that fateful day of June 30, 2002. They were also

witness to the crime and their deposition states similar facts

as narrated by PW-1 and PW-2.

17. The post-mortem was conducted on 01.07.2002 by Dr.

Vinay Kumar Singh (PW18) of LBS Hospital. He found 17

ante mortem injuries on the body of the deceased. He

confirms his post-mortem report, in his deposition, where

in his opinion the cause of death was shock resulting from

fire arm injuries. He states that the injuries on the chest

and on the back of the deceased were sufficient to cause his

death. He also mentions that bullets were also recovered

from the chest cavity of the deceased and one bullet was

recovered from the right side of the back. There were 6 fire-

arm entry wounds corresponding to 6 fire-arm exit wounds.

At least one fire-arm entry wound has a blackening at the

entry point which shows that this was fired at a point-blank

range.

18. In all, the deceased had received 8 to 9 shots from the

carbine of the appellant which are spread all over his body. 15

Entry wounds exist on the front as well as on the back of

the deceased’s body, which makes it clear that the deceased

was shot not only from the front but also from the back,

while he was trying to escape. The nature of these injuries

corroborates with the ocular testimony of PW-2. It is PW-2

who had said that when she came to the Police Station, she

had seen the deceased talking to the appellant at the gate

of the police station and that the appellant was armed with

a carbine. PW-21, Constable Devender Kumar who had to

take the charge of ‘sentry’/guard at 12 noon, also states

that he saw the appellant talking to the deceased before the

incident. PW-2 heard the sound of firing few minutes later

and then saw the deceased (who was bleeding) rushing

towards the duty room with his hands in the air, and the

appellant was seen firing at him from behind.

19. Taken together, all these evidences are unassailable. The

case of the prosecution stands secured on these evidences.

It is a clear case of murder. The motive for the appellant

(admittedly the deceased was having an affair with the

appellant’s wife), and the execution of the crime at the Police

Station, all point towards the murder committed inside the 16

police station by the present appellant. The one fire arm

injury with blackening at the entry point also explains that

the deceased was first shot from a close range. The

remaining injuries also correlate with the testimony of the

eye witnesses referred above.

20. The plea of self-defence and in the alternative the plea of

grave and sudden provocation taken by the appellant is

based on the theory that it was the deceased who came to

the police station in full speed in his car thereby first hitting

the gate of the police station and then making an attempt

to snatch the weapon from the appellant in order to kill him.

But these arguments do not hold any ground and most

importantly there is not even an iota of evidence to sustain

this bizarre line of defence.

21. Under Section 105 of the Indian Evidence Act2, the burden

of proof that the accused’s case falls within the general

exception is upon the accused himself. This Court in State

2 105. Burden of proving that case of accused comes within exceptions.—When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

17 of M.P. v. Ramesh, (2005) 9 SCC 705 observed that:

“Under Section 105 of the Indian Evidence Act, 1872 (in short “the Evidence Act”), the burden of proof is on the accused, who sets up the plea of self- defence, and, in the absence of proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances……Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused.”

This burden of proof though is not as onerous as the

burden of proof beyond all reasonable doubts which is on

the prosecution, nevertheless some degree of reasonable

satisfaction has to be established by the defence, when this

plea is taken. (See : Salim Zia v. State of U.P., (1979) 2

SCC 648).

22. In the case at hand, the defence has not been able to

establish a case of private defence by any evidence. There is

no evidence on this aspect and therefore this plea was

rightly rejected by the Trial Court as well as the Appellate

Court.

18

23. In fact, the plea of self-defence taken by the

accused/appellant is childish to say the least, in the light of

the facts of the case, and on the weight of the evidence of the

prosecution. The case of the defence that the deceased

came to the Police Station “ unarmed” to kill the appellant

knowing very well that the appellant was armed with a

weapon is an awkward attempt to present the deceased as

the aggressor. It does not make any sense. What is most

important here is the eye-witness accounts of PW-2, PW-1, PW-

11 & PW-17, which prove that the appellant did not stop at the

initial firing of the shot, which he had fired from a close range

(the entry wound of gun shot with blackening). Instead, he

continued to spray bullets on the deceased even when he was

trying to escape. The eye witness accounts of four police

personnels who were all present at the Police Station at that

point of time, establish a case of murder beyond any reasonable

doubt.

24. The defence again has not even been able to discharge its

burden by showing that it is a case of grave and sudden

provocation, though an attempt has been made by the

defence to bring the case under Exception I to Section 300 19

IPC. There is however, nothing on record to show that the

deceased hit the car at the gate of the Police Station, which

was found parked inside that Police Station with no

scratch on its body, thus disproving that it had hit the gate

as was the case of the defence. Moreover, all the facts which

have been placed before the Court show that it was the

appellant who had a motive to kill the deceased as the

deceased was having an illicit relationship with his wife. In

spite of best efforts by the family members of the appellant

and the deceased, the deceased continued with this

relationship with the wife of the appellant. This was hence

the motive for the appellant to kill the deceased.

25. The appellant would argue that the Act attributable to him

would fall under Exception 1 to Section 300 of the Indian

Penal Code, which reads as under:

“Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:—

First.—That the provocation is not sought or 20

voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.”

According to the defence, the death of the deceased was

caused by the appellant when the appellant was deprived of

his power of self-control due to grave and sudden

provocation caused by the deceased which resulted in his

death by accident.

This court has reiterated in more than one cases right

from K.M. Nanavati v. State of Maharashtra AIR 1962

SC 605 onwards that provocation itself is not enough to

reduce the crime from murder to culpable homicide not

amounting to murder. In order to convert a case of murder

to a case of culpable homicide not amounting to murder,

provocation must me such that would temporarily deprive

the power of self-control of a “reasonable person”. What has 21

also to be seen is the time gap between this alleged

provocation and the act of homicide; the kind of weapon

used; the number of blows, etc. These are again all questions

of facts. There is no standard or test as to what

reasonableness should be in these circumstances as this

would again be a question of fact to be determined by a

Court. Nanavati (supra) answers this question as follows:

“84. Is there any standard of a reasonable man for the application of the doctrine of “grave and sudden” provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision : it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.

85. The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of “grave and sudden” provocation is whether a 22

reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.

(4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.”

In the present case on every possible count the case is

nothing but a case of murder. The nature of weapon used;

the number of gun shots fired at the deceased; the part of the

body where gun shots are fired, all point towards the fact that

the appellant was determined to kill the deceased.

Ultimately, he achieved his task and made sure that the

deceased is dead. By no stretch of logic is it a case of any

lesser magnitude, and definitely not culpable homicide not

amounting to murder.

The facts of the present case do not even remotely make 23

out any case under Exception 1 to Section 300 of the IPC, or

under any other Exception(s) to Section 300 of IPC.

26. In view of the above, we are not inclined to interfere with the

findings of the Trial Court and the High Court. Accordingly,

this appeal is dismissed. The interim order dated 02.04.2012

granting bail to the appellant, hereby, stands vacated and the

appellant is hereby directed to surrender before the trial court

within four weeks from today. A copy of this Judgment shall be

sent to the Trial Court to ensure that the appellant surrenders

and undergoes the remaining part of his sentence.

…………………………..J. [SUDHANSHU DHULIA]

..…………………………J. [RAJESH BINDAL]

New Delhi July 3, 2024