Full Judgment Text
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CASE NO.:
Appeal (crl.) 628-29 of 2001
Appeal (crl.) 630 of 2001
Appeal (crl.) 1210-11 of 2001
PETITIONER:
SURENDRA SINGH RAUTELA @ SURENDRA SINGH BENGALI
Vs.
RESPONDENT:
STATE OF BIHAR (NOW STATE OF JHARKHAND)
DATE OF JUDGMENT: 27/11/2001
BENCH:
M.B. Shah & B.N. Agrawal
JUDGMENT:
B.N.AGRAWAL, J.
Leave granted in SLP (Crl.) Nos. 1964-65 of 2001.
These appeals by Special Leave have been preferred against
the judgment rendered by Jharkhand High Court. Surendra Singh Rautela
@ Surendra Singh Bengali who is sole appellant in Criminal Appeal No.
628-29 of 2001 and Mohd. Anis who is appellant in Criminal Appeal No.
630 of 2001 were tried and convicted by the trial court. Surendra Singh
Rautela was convicted under Sections 302 and 307 of the Penal Code
and sentenced to undergo rigorous imprisonment for life on both counts.
He was further convicted under Section 27(3) of the Arms Act and
awarded death sentence and the matter was referred to the High Court for
confirmation of death sentence. Mohd. Anis was convicted under Sections
302 and 307 read with Section 34 of the Penal Code and sentenced to
rigorous imprisonment for life and ten years respectively. He was further
convicted under Section 27(1) of the Arms Act and sentenced to undergo
rigorous imprisonment for seven years. The sentences awarded against
the appellants were, however, ordered to run concurrently. Both the
accused persons preferred separate appeals before the High Court
challenging their convictions whereas on behalf of the State, an appeal
was filed for enhancement of punishment of life imprisonment awarded
against Mohd. Anis into death penalty. The High Court by a common
judgment disposed of the reference and the appeals. Appeals preferred
by Mohd. Anis and State Government have been dismissed whereby
convictions and sentences awarded against this appellant have been
affirmed. So far appeal preferred by appellant Surendra Singh Rautela is
concerned, his conviction and sentence under Section 27(3) of the Arms
Act have been set aside. Conviction and sentence of this appellant under
Section 307 of the Penal Code have been upheld. So far as his conviction
under Section 302 of the Penal Code is concerned, the same has been
confirmed but he has been awarded death penalty.
Prosecution case, in short, is that on 4th April, 1996 at 10.00
a.m., the informant Ranjan Singh (PW 7) along with his maternal uncle
Dhananjay Singh and their bodyguards Shyam Bihari Singh (PW 4) and
Karu Singh were going in a Maruti Car to their site where contract work
was going on. Ranjan Singh (PW 7) was driving the Car and Dhananjay
Singh was sitting by his side whereas Shyam Bihari Singh (PW 4) and
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Karu Singh were sitting on the rear seat of the Car. Shyam Bihari Singh
was holding licensed revolver belonging to Ranjan Singh (PW 7). At about
10.20 a.m., when the Car reached near Military Chowk at Booty Road, one
black coloured Yamaha motor cycle, on the rear seat of which, appellant
Surendra Singh Rautela was sitting, came from behind at the right side of
the Car and he started firing at Ranjan Singh (PW 7) by a stengun, who
pushed himself behind. In the meantime, there was also firing from the left
side of the Car by a person who was on a scooter. Thereupon, the
informant stopped the Car in front of the traffic post. As a result of firing,
Ranjan Singh (PW 7) and his maternal uncle Dhananjay Singh got injured.
Thereafter, the accused persons fled away. At that time, some police
personnel arrived there and brought Ranjan Singh (PW 7) and Dhananjay
Singh in injured condition to Rajendra Medical College Hospital where
doctor declared Dhananjay Singh as brought dead. It was stated in the
first information report that Ranjan Singh (PW 7) could identify the person,
who was driving the motor cycle, on seeing him and other occupants of the
Car could identify, the person who was on the scooter and fired from the
left side, on seeing him. Motive for the occurrence as disclosed in the first
information report was that prior to the incident appellant Surendra Singh
Rautela had demanded Rs. 2 lakhs from Ranjan Singh (PW 7) as ransom
on two or three occasions which was refused by him which led to the
present occurrence. Stating the aforesaid facts, fardbayan of Ranjan
Singh (PW 7) was recorded by the police in the hospital on the same day
at 11.30 a.m. on the basis of which the first information report was drawn
up.
The police after registering the case took up investigation and
on completion thereof submitted charge sheet on receipt whereof, the
magistrate took cognizance and committed the accused persons to the
court of sessions to face trial. During trial, the prosecution examined
fourteen witnesses in all and upon the conclusion of trial, the trial court
convicted and sentenced the appellants whereupon appeals were
preferred and the same having been disposed of as stated above, the
present appeals by Special Leave filed on behalf of the accused persons
as well as the State are before us.
First, we proceed to consider ocular version of the occurrence
supported by the informant Ranjan Singh (PW 7). According to the first
information report and the evidence of this witness, besides him and the
deceased Dhananjay Singh, there were two other occupants of the car,
who were eye witnesses, namely, Shyam Bihari Singh (PW 4) and Karu
Singh, out of whom, Karu Singh died during trial, therefore, could not be
examined and Shyam Bihari Singh was examined as PW 4, but as he did
not support the prosecution case, he was declared hostile. Thus, Ranjan
Singh (PW 7) remains the solitary eye witness. This witness has received
injuries by firearms on vital parts of the body, as would appear from the
evidence of Dr. V.K.Jain (PW 8), who examined this witness on the date of
occurrence itself in the hospital where he was admitted. This witness has
supported the prosecution case in all material particulars and his evidence
has been corroborated by Ram Pal Singh (PW 1), Om Prakash (PW 3) and
Kundan Prakash (PW 5), out of whom, PW1 is his father and PW3 and
PW5 are his brothers, who were at their house at 11.00 a.m. in the
morning of the date of occurrence and rushed to the hospital immediately
upon receipt of information before whom the informant disclosed about the
occurrence and name of appellant Surendra Singh Rautela. These
witnesses were examined by the police on the same day in the hospital.
The medical evidence supports the statement of Ranjan Singh (PW 7) as
Dr. A.K.Choudhary (PW 6), who held postmortem examination on the dead
body of Dhananjay Singh on the date of occurrence itself at 4.00 p.m.,
found injuries by firearm and opined that death was caused between three
to eighteen hours at the time of postmortem examination which fits in with
the prosecution case. That apart, the doctor recovered a bullet from the
dead body which was sent to the Forensic Science Laboratory where it
was examined by Ezaj Ahmad Khan (PW 12), Deputy Director, Ranchi
Regional Forensic Science Laboratory, who opined that bullet was fired
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from 9 mm caliber and on the statement of accused Surendra Singh
Rautela made before the police, firearms including 9 mm. Caliber were
recovered by the Police Officer, PW.14, from steel almirah in the premises
of ceramic factory on key being produced by the accused himself. Shri
P.S. Mishra, learned Senior Counsel appearing on behalf of the appellant
Surendra Singh Rautela submitted that no reliance should be placed upon
the testimony of Ranjan Singh (PW 7) as the prosecution case has not
been supported by another eye witness Shyam Bihari Singh (PW 4), who
has been declared hostile. In our opinion, in view of the fact that Ranjan
Singh (PW 7) is an injured person and his evidence is corroborated by
PWs 1, 3 and 5 and the medical evidence, we cannot discard his evidence
merely because another eye witness Shyam Bihari Singh (PW 4) has not
supported the prosecution case.
Shri Mishra submitted that the prosecution has failed to prove
the motive which has been disclosed in the first information report as no
evidence has been led to prove the same. In our view, the submission has
been made only to be rejected as the motive has been proved by the three
witnesses, namely, Ram Pal Singh (PW 1), Om Prakash (PW 3) and
Kundan Prakash (PW 5). Ram Pal Singh (PW 1), who is father of the
informant, stated that two or three times, telephone calls were received in
his presence from appellant Surendra Singh Rautela demanding Rs. 2
lakhs as ransom from the informant. He has further stated that on one
occasion, he also received a telephonic call from appellant Surendra Singh
Rautela demanding ransom. Om Prakash (PW 3), who is brother of the
informant has stated that the cause of incident was that Surendra Singh
Rautela had demanded a sum of Rs. 2 lakhs from the informant. Kundan
Prakash (PW 5), who is another brother of the informant, stated that PW.7
told him that cause of incident was refusal to meet the demand of ransom
of appellant Surendra Singh Rautela by the informant.
Learned counsel for the appellant Surendra Singh Rautela
next submitted that identification of this appellant by Ranjan Singh (PW 7)
was highly improbable as this witness had seen him prior to the
occurrence only once. This witness has stated in his evidence that five to
six days before the incident, he was introduced to appellant Surendra
Singh Rautela by Shyam Bihari Singh (PW 4) in Ganga Ashram Hotel at
Kachcheri Road where they had gone for taking snacks. Since the
incident had taken place in broad day light and as this appellant was
introduced to this witness in the hotel, we do not find any improbability in
identification of appellant Surendra Singh Rautela by him.
Shri Mishra further submitted that the High Court was not
justified in enhancing the punishment awarded against this appellant from
imprisonment for life to death sentence as no appeal under Section 377 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as the
Code) was filed by the State for enhancement of sentence. It has been
further submitted that no opportunity of hearing was afforded to appellant
Surendra Singh Rautela against the enhancement of sentence. It is well
settled that the High Court, suo motu in exercise of revisional jurisdiction,
can enhance the sentence of an accused awarded by the trial court and
the same is not affected merely because an appeal has been provided
under Section 377 of the Code for enhancement of sentence and no such
appeal has been preferred. Reference in this connection may be made to
decisions of this Court in the cases of Nadir Khan v. The State (Delhi
Administration) AIR 1976 SC 2205 and Eknath Shankarrao Mukkawar
v. State of Maharashtra AIR 1977 SC 1177. It has been also settled by
this Court in the cases of Jayaram Vithoba and another v. The State of
Bombay AIR 1956 S.C.146 and Bachan Singh and others v. State of
Punjab AIR 1980 SC 267 that the suo motu powers of enhancement under
revisional jurisdiction can be exercised only after giving opportunity of
hearing to the accused. In the case on hand, undisputedly, no opportunity
of hearing was given to the appellant Surendra Singh Rautela on the
question of enhancement of sentence.
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Thus, in view of the foregoing discussions, we are of the view
that the High Court was quite justified in upholding conviction of appellant
Surendra Singh Rautela under Sections 302 and 307 of the Penal Code
but was not justified in enhancing the sentence of life imprisonment
awarded under Section 302 of the Penal Code into death penalty.
Turning now to the case of appellant Mohd. Anis, it may be
stated that his conviction is based upon the solitary evidence of his
identification by Ranjan Singh (PW 7) in Court as well as in the test
identification parade. Even according to prosecution case as disclosed in
the first information report as well as the evidence of Ranjan Singh (PW
7), this appellant was sitting on rear seat of the scooter which came from
left side of the car and fired at the victims. In the first information report, it
has been specifically stated that the associates of the informant who were
in the Car could identify this appellant, who fired from the scooter, on
seeing him and the informant could identify the person who was driving the
motor cycle on seeing him and on which motor cycle accused Surendra
Singh Rautela was sitting on the rear seat and fired at the victims. From
the aforesaid statement of the informant in the first information report, it
would appear that he could not identify appellant Mohd. Anis even by face
and for the first time in the Sessions Court, the witness identified him. In
view of the aforesaid statement in the first information report, the
identification of the appellant Mohd. Anis by Ranjan Singh (PW 7) in the
test identification parade becomes farce and no reliance can be placed
upon his identification in Court. This being the position, we have no option
but to hold that the High Court was not justified in upholding convictions
and sentences awarded against this appellant.
As far as appeal preferred on behalf of the State of Jharkhand
is concerned, the same was filed challenging the acquittal of appellant
Surendra Singh Rautela by the High Court from the charge under Section
27(3) of the Arms Act, but Shri S.B.Sanyal, learned Senior Counsel
appearing on behalf of the State submitted that he is not in a position to
challenge the order of acquittal on merit. It appears that in the leading
judgment, the learned Judge recorded acquittal of appellant Surendra
Singh Rautela from the charge under Section 27(3) of the Arms Act on
merit but in the concurring judgment which is by the learned Chief Justice,
acquittal under the aforesaid Section has been recorded on the ground
that it was not permissible in law to try appellant Surendra Singh Rautela
simultaneously for the offences under Sections 302 of the Penal Code as
well as 27(3) of the Arms Act. Learned counsel for the State has objected
to recording of acquittal in the concurring judgment on this ground. It has
been submitted that the learned Chief Justice was not justified in holding
that it was not permissible in law to try appellant Surendra Singh Rautela
simultaneously for the offences under Sections 302 of the Penal Code as
well as 27(3) of the Arms Act as the same is contrary to the provisions of
Section 220 of the Code. Sub section (1) of Section 220 of the Code lays
down that if, in one series of acts so connected together as to form the
same transaction, more offences than one are committed by the same
person, he may be charged with, and tried at one trial for, every such
offence. Sub section (3) of Section 220 of the Code lays down that if the
acts alleged constitute an offence falling within two or more separate
definitions of any law in force for the time being by which offences are
defined or punished, the person accused of them may be charged with,
and tried at one trial for, each of such offences. In the case on hand, the
act of firing by appellant Surendra Singh Rautela at the victims
constitutes offences both under the Penal Code as well as Arms Act.
Under the Penal Code, two offences have been disclosed, one under
Section 307 of the Penal Code for firing at Ranjan Singh (PW 7) and
another under Section 302 of the Penal Code for firing at Dhananjay
Singh, deceased. The act of firing at Dhananjay Singh, deceased, by
appellant Surendra Singh Rautela apart from constituting an offence
punishable under Section 302 of the Penal Code does constitute an
offence punishable under Section 27(3) of the Arms Act. According to the
provisions of Sub section (3) of Section 220 of the Code, if act or acts of an
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accused in the same transaction constitute more than one offence under
different laws, the person accused of them may be charged with and tried
at one trial for each of such offences. Thus, in view of the specific
provisions engrafted under sub section (3) of Section 220 of the Code, we
have no option but to hold that the learned Chief Justice in the concurring
judgment was not justified in holding that it was not permissible to try
appellant Surendra Singh Rautela simultaneously for offences under
Section 302 of the Penal Code as well as Section 27(3) of the Arms Act
and the charge under Section 27(3) of the Arms Act was totally
superfluous.
In the result, Criminal Appeal Nos. 628-29 of 2001 are allowed
in part and sentence of death awarded against appellant Surendra Singh
Rautela @ Surendra Singh Bengali by the High Court under Section 302
of the Penal Code is set aside and the sentence of imprisonment for life
awarded under that Section by the trial Court is restored while upholding
conviction of the appellant under Section 302 of the Penal Code and his
conviction and sentence under Section 307 of the Penal Code. Criminal
Appeal No. 630 of 2001 is allowed, convictions and sentences awarded
against appellant Mohd. Anis are set aside and he is acquitted of all the
charges. Appellant Mohd. Anis is directed to be released forthwith, if not
required to be in custody in connection with any other case. Criminal
Appeals arising out of SLP(Crl.) Nos.1964-65 of 2001 preferred by the
State are disposed of with the observations aforementioned.
.J.
[ M.B.SHAH ]
.J.
[ B.N.AGRAWAL ]
November 27, 2001.