Surendra Kumar vs State Of Uttar Pradesh on 20 April, 2021


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Supreme Court of India

Surendra Kumar vs State Of Uttar Pradesh on 20 April, 2021

Author: Hrishikesh Roy

Bench: Rohinton Fali Nariman, B.R. Gavai, Hrishikesh Roy

                                                                     Non-Reportable

                                         IN THE SUPREME COURT OF INDIA
                                        CRIMINAL APPELLATE JURISDICTION

                                    CRIMINAL APPEAL NO._______OF 2021
                               (Arising out of SLP (Crl) No. 6965 OF 2019)


                         Surendra Kumar & Anr.                        APPELLANT(S)


                                                    VERSUS


                         State of U.P.                               RESPONDENT(S)



                                               J U D G M E N T

Hrishikesh Roy, J.

Leave granted. This appeal is the culmination of a

tragedy which decimated two families in its course. The

murder of a recently married young woman, where the

finger of suspicion was raised towards her own husband,

brother-in-law and even her father-in-law as an accused

who met an unnatural demise during the pendency of the

trial. This Court has been approached to lay to rest

Signature Not Verified the litigation which has followed suit for more than
Digitally signed by
Jayant Kumar Arora
Date: 2021.04.24
14:43:04 IST
Reason:

two decades.

Page 1 of 23

2. Heard Mr. Shadan Farasat, learned counsel for the

appellants. Also heard Mr. V. Diwakar, learned AAG

representing the State of Uttar Pradesh. The challenge

in this appeal is to the common judgment and order

dated 12.3.2019 in Criminal Appeal No. 346 of 2009,

whereby the Division Bench of the High Court of

Judicature at Allahabad upheld the conviction of the

appellant No. 1 under Section 302 read with Section 34

of the Indian Penal Code, 1860 (hereinafter referred to

as “IPC”) and of the appellant No. 2, under section

120B IPC.

3. The appellants are brothers and are residents of

Mahal Village in Meerut District. The appellant No. 2

Ramveer was married on 13.5.1993 to Kamla Rani, whose

parental home was in the neighboring village of

Phlawada. On 8.8.1993 Kamla Rani, after spending some

days with her parents was returning back on the scooter

driven by her brother in law Surendra Kumar (appellant

No. 1). Some minutes after they started the journey,

two armed miscreants on the road between Phlawada and

Bathnor ambushed the scooter near the forested area and

took Kamla Rani to the roadside sugarcane field of

Page 2 of 23
Quasim Ali and shot her from close range and robbed her

of the gold and silver ornaments worn on her person.

Surendra Kumar then rode the scooter to village

Phlawada to inform Baldev, the father of Kamla Rani

about the incident. The scooter was left behind with

Kamla Rani’s father and Surendra then returned to his

own village and informed his brother and other family

members in the matrimonial home of the deceased, at

Village Mahal. Both brothers accompanied by their

father, thereafter rushed to the police station. Around

the same time, Dhan Singh (PW-1) and Karamveer (PW-2),

who were near the site of incident, after hearing the

sound of firing went towards the field and they noticed

two miscreants (not appellants), removing ornaments

from the body of Kamla Rani. The PW1 and PW2 accosted

the looters but showing arms, both looters fled from

the scene.

4. The FIR of the incident (which took place around

4.45 pm) was filed at 5.30 pm by Baldev Singh (father

of the deceased Kamla Rani) at the Phlawada Police

Station. Meanwhile, the appellants and their father Om

Prakash also reached the Police Station. Since,

Page 3 of 23
maltreatment of the deceased in the matrimonial home

was alleged in the FIR, the appellants were detained in

the police lock up and four days later, the police

formally arrested all three, on charge of conspiracy

and murder. In course of investigation, the police

also arrested Rajveer and Shiv Kumar alias Pappu,

suspecting them to be the two unknown robbers seen by

PW1 and PW2, in the act of removing ornaments from the

person of the deceased Kamla Rani.

5. The preliminary investigation was done by S.I

Ramachandra Singh (PW5), who prepared the Panchnama

(Exbt Ka-7) and sent the dead body for autopsy. Few

jewellery items and the locked suitcase, found near the

body were also seized by the PW-5. Next day i.e.

9.8.1993, the SHO Amrat Lal returned from leave and led

the investigation. He seized the scooter from the

residence of Baldev and the recovery memo of scooter

(Exbt Ka-2) was prepared.

6. The autopsy of dead body of Kamla Rani was done by

PW3 Dr. N.K Maheshwari on 9.08.1993 at 4.30 p.m. and he

noted the following antemortem injuries on the body;

Page 4 of 23
1 Firearm wounds of entry 2.0 cm X 2.5 cm on right side

of neck blackening & tattooing 8.0 cm X 8.0 cm on upper

side of wounds;

2 Firearm entry wound of 2.0 cm X 2.5 cm into muscle

deep with blackening & tattooing around 2.0cm, mandible

bone was also fractured.

3- Firearm wounds of exit 5.0 cm x 8.0 cm margin

irregular at the left side of Upper face on external

examination of dead body post mortem staining present

on the back side rigour mortis was absent on upper side

and present on lower side of the body.

Dr. N.K Maheshwari in his report opined that the cause

of death was hemorrhage & shock as a result of ante-

mortem injury.

7. As stated earlier, the investigation unearthed the

names of Shiv Kumar and Rajveer (both acquitted by the

High Court). On completion of investigation, the

chargesheet (Exbt Ka3) was filed by the I.O. against 5

accused. The case was committed and charge was framed

by Sessions Court against Shivkumar and Rajveer u/s.

Page 5 of 23
302/394 of IPC; against Om Prakash and Ramveer u/s.

120B IPC and against Surendra Kumar u/s. 302/34 of

I.P.C. All five accused were tried together but Om

Prakash died during trial and the case against him was

abated.

8. While there was no direct evidence implicating the

appellants in the crime, on the basis of circumstantial

evidence of the husband being unhappy with Kamla Rani,

the alleged conspiracy hatched by him with his brother

and father Om Prakash and the fact that the deceased

was last seen in the company of appellant Surendra in

whose scooter she was travelling back from her parental

home, and the suspicious conduct of the appellants, the

Trial Court convicted the appellant No. 1 Surendra

Kumar, under Section 302 read with Section 34 IPC and

the appellant No. 2 Ramveer, under Section 120B IPC.

Accused Shiv Kumar and Rajveer were additionally held

guilty under Section 394 and an appropriate sentence

was imposed against all four accused, by the learned

Additional Sessions Judge, Meerut.

Page 6 of 23

9. In the appeal filed by the brothers, High Court

confirmed the conviction of the appellants but relief

was granted in the connected criminal appeal filed by

Rajveer and Shiv Kumar and they were acquitted.

10. The High Court while affirming the conviction,

accepted the conspiracy theory of the prosecution for

the murder of Kamla Rani. The Court also accepted the

last seen together evidence against appellant Surendra

Kumar. Noting the absence of credible explanation from

Surendra, on the circumstances of the incident, the

appeal of the brothers Surendra and Ramveer was

dismissed by the High Court, leading to present

challenge.

11. As the case against the appellants is entirely

based on circumstantial evidence, it is necessary to

determine whether the available evidence lead only to

the conclusion of guilt and exclude all contrary

hypothesis. The enunciation on the law of

circumstantial evidence stood the test of time since

Page 7 of 23
Hanumant Vs. State of Madhya Pradesh1 where Mahajan J.,

has written as under:-

“10…………It is well to remember that in
cases where the evidence is of a
circumstantial nature, the
circumstances from which the conclusion
of guilt is to be drawn should in the
first instance be fully established,
and all the facts so established should
be consistent only with the hypothesis
of the guilt of the accused. Again, the
circumstances should be of a conclusive
nature and tendency and they should be
such as to exclude every hypothesis but
the one proposed to be proved. In
other words, there must be a chain of
evidence so far complete as not to
leave any reasonable ground for a
conclusion consistent with the
innocence of the accused and it must be
such as to show that within all human
probability the act must have been done
by the accused……………”

12. The nature, character and essential proof required

in criminal cases was discussed in detail by Fazal Ali

J in Sharad Birdhichand Sarda vs. State of Maharashtra2

and the proposition of law culled out on circumstantial

evidence was approved in many subsequent judgments and

was recently reiterated by Krishna Murari J., writing

the opinion for a three Judges Bench in Shailendra

1 AIR 1952 SC 343
2 (1984) 4 SCC 116

Page 8 of 23
Rajdev Pasvan & Ors. Vs. State of Gujarat & Ors. 3 where

it was succinctly laid down as under:-

“17. It is well settled by now that in a case
based on circumstantial evidence the courts
ought to have a conscientious approach and
conviction ought to be recorded only in case
all the links of the chain are complete
pointing to the guilt of the accused. Each
link unless connected together to form a
chain may suggest suspicion but the same in
itself cannot take place of proof and will
not be sufficient to convict the accused.”

13. Proceeding with the above proposition of law, let

us now examine whether the circumstances here

satisfactorily prove that Kamla Rani was murdered

because her husband had an issue with her appearance.

The unhappiness of the appellant No. 2 with his wife is

projected by the testimony of Santari (PW-6) and Nain

Singh (PW-7) and similar thing is also mentioned in

the FIR written by Nain Singh (PW-7) as, dictated by

Baldev Singh, the father of the deceased. The

reliability of the evidence of PW6 and PW7 is however

to be tested in the backdrop of the fact that PW7 Nain

Singh and Shravan Kumar (husband of PW-6) were charged

with the murder of their deceased sister’s father-in-

3 (2020) 14 SCC 750

Page 9 of 23
law i.e. Om Prakash alias Mallu. Both were named in

the FIR 157 of 2000 registered under Section 302 and

506 of the IPC and were detained in jail in the year

2000. The testimony of PW-6 and PW-7 was recorded in

Court, much after Shravan Kumar (husband of PW-6) and

Nain Singh (PW-7) were released from jail. As such it

cannot be ruled out that PW-6 and PW-7 had strong

reason for implicating the appellants. Therefore, the

motive attributed to the appellants in the evidence of

PW-6 and PW-7, would fail the test of legal scrutiny in

the absence of any corroborative evidence.

14. The appellant Ramveer was married with Kamla Rani

and no criminal act is attributed to him. His

conviction is entirely based on the theory that he

hatched a conspiracy with his brother and father to

eliminate Kamla Rani as he was unhappy with her looks.

This appears to be far fetched because prosecution

failed to adduce any evidence to prove the meeting of

minds of the two brother or with the other two accused

Shiv Kumar and Rajveer to eliminate Kamla Rani. The

unhappiness attributed to the husband cannot reasonably

implicate his brother Surendra Kumar or the two

Page 10 of 23
unrelated accused. In any event the additional charge

against Shiv Kumar alias Pappu and Rajveer was under

Section 394 IPC but no such charge of robbery is

attributed to the present two appellants. Most

significantly there is no common conspiracy theory

connecting all the accused in the case. The prosecution

as can be noted, failed to establish any criminal

conspiracy between Surendra and Ramveer on one hand and

the accused Shiv Kumar and Rajveer who additionally

were charged with robbery, on the other hand.

Therefore, the theory of common intention or meeting of

mind between the appellants and the two acquitted

accused Shiv Kumar and Rajveer, must be discarded as

implausible.

15. In any case, even Ramveer’s dissatisfaction with

his wife may not provide an acceptable and strong

enough motive for the husband to conspire and kill

Kamla Rani. This is pertinent since no role whatsoever

is attributed to the husband by the evidence on record.

Ramveer may or may not be having a cordial relation

with the deceased but it can’t be said with certainty

Page 11 of 23
that killing her was the only option available to him

to avoid the company of the deceased.

16. Equally telling is the testimony of PW1 and PW2

who heard gun shots and soon thereafter saw the two

acquitted accused Shiv Kumar and Rajveer removing

ornaments from the dead body of the deceased. The

witnesses confronted and followed both robbers for some

distance. They were present at the spot and saw part of

the crime but they never implicated the brother-in-law,

who was last seen with the deceased. However, the Court

refused to give credence to their testimony by

describing them as chance witnesses. The PW-1 and PW-2

as the only ones present near the place of occurrence,

do not implicate the appellant No. 1 with the crime.

The courts below however, discarded the evidence of

these two key witnesses who heard firing and also saw a

part of the crime, by treating them as chance

witnesses. The presence of PW1 and PW2 near the place

of occurrence was natural and their testimony on the

sequence of crime at the place of occurrence was cogent

and consistent. Both had not only seen the robbery but

also confronted the robbers and followed them for a

Page 12 of 23
while. The Courts below in our view erred in not

treating both as independent witnesses. Their testimony

would be of value to show that the appellant Surendra

Kumar had no connection with the two robbers and his

innocence could then be inferred without much

difficulty.

17. We may now examine the role and conduct of the

appellant No. 1 Surendra Kumar who was escorting the

deceased from her parental home on his scooter and is

the last person seen in the company of the deceased.

The Court below however has relied upon Section 106 of

the Indian Evidence Act to connect him with the crime.

This according to us was the incorrect approach

inasmuch as the burden to prove the guilt is always on

the prosecution and cannot be shifted to the accused by

virtue of Section 106 of the Evidence Act. This

proposition of law on criminal jurisprudence stood the

test of time since Emperor Vs. Santa Singh4 where Din

Mohammad J., observed as under:-

“28. …………Section 106 of the Evidence
Act, cannot be used to strengthen the
evidence for the prosecution. The
4 AIR 1944 Lahore 339 (FB)

Page 13 of 23
prosecution must stand or fall on the
evidence adduced by it and until a prima
facie case is established by such
evidence, the onus does not shift on to
the accused. Mere proof that an
incriminating article is found in
premises occupied by a number of persons
does not in itself establish prima facie
the guilt of any particular person or
all of them jointly. That being so,
they cannot be called upon after such
evidence to establish their innocence.

They can only be called upon to do that
when the evidence has established a
prima facie case against any one or more
of them or all of them……………….”

In the present case, the prosecution failed to

adduce acceptable evidence to prove the crime against

the appellants and the Court according to us erred in

shifting the burden of proving the innocence upon the

accused, with the aid of Section 106 of the Evidence

Act.

18. The next issue to be considered is whether there

was any suspicious conduct of the appellant Surendra

Kumar after the incident. Soon after the scooter was

ambushed and Kamla Rani was shot dead, the appellant

Surendra Kumar straight away rode the scooter to

Phlawada village to inform Baldev, the father of the

deceased. The post occurrence meeting between the

Page 14 of 23
deceased’s father Baldev and Surendra, can be gathered

from the fact that in the FIR lodged within half an

hour of the incident, Baldev had specifically mentioned

about absence of injuries on Surendra. The question is

whether failure of the brother-in-law to confront the

armed attackers and not suffer any injury thereby, can

be a circumstance to implicate him. The reaction of

witnesses who see violent crime can vary from person to

person and to expect a frightened witness to react in a

particular manner would be wholly irrational. Equally

dangerous would be the approach of the Courts to reach

certain conclusion based on their understanding of how

a person should react and to draw an adverse inference

when the reaction is different from what the Court

expected. Explaining the fallacy in such approach

Chinnappa Reddy J speaking for the Bench in Rana Pratap

and others vs. State of Haryana5 observed the

following;

“6. Yet another reason given by the learned
Sessions Judge to doubt the presence of the
witnesses was that their conduct in not
going to the rescue of the deceased when he
was in the clutches of the assailants was
5 (1983) 3 SCC 327

Page 15 of 23
unnatural. We must say that the comment is
most unreal. Every person who witnesses a
murder reacts in his own way. Some are
stunned, become speechless and stand rooted
to the spot. Some become hysteric and start
wailing. Some start shouting for help.
Others run away to keep themselves as far
removed from the spot as possible. Yet
others rush to the rescue of the victim,
even going to the extent of counter-

attacking the assailants. Every one reacts
in his own special way. There is no set
rule of natural reaction. To discard the
evidence of a witness on the ground that he
did not react in any particular manner is
to appreciate evidence in a wholly
unrealistic and unimaginative way.”

Approving the above view, S.B. Sinha J., in Dinesh

Borthakur Vs. State of Assam6 succinctly explained how

guilt should not be inferred because of a particular

type of reaction by an individual. The relevant parts

are extracted below: –

“47. No hard-and-fast rule having any
universal application with regard to the
reaction of a person in a given
circumstance can, thus, be laid down. One
person may lose equilibrium and balance of
mind, but, another may remain a silent
spectator till he is able to reconcile
himself and then react in his own way.

Thus, merely because the appellant did not
cry or weep on witnessing the dead bodies
of his wife and daughter, cannot be made
the basis for informing (sic inferring)
his guilt.”

6 (2008) 5 SCC 697

Page 16 of 23
The above pronouncements in our view rightly

prescribe that there can be no uniform or universal

reaction for a crime witness and inferences must not be

drawn on Court’s assumption.

19. The fact that the appellant Surendra Kumar chose

to first inform Baldev that his daughter was shot by

miscreants instead of confronting the miscreants or

informing the police, is not an unnatural reaction.

Moreover, since Baldev on being informed had

immediately registered the FIR at the Police Station,

there was no occasion for either of the appellants to

file a second FIR on the same crime. Therefore, the so

called suspicious conduct after the incident, was

wrongly inferred only because the appellant reacted in

a particular manner. In the process, the Court failed

to notice the vital fact that Baldev was informed of

his daughter’s killing by appellant Surendra. This

conduct of the appellant makes it equally plausible

that Surendra was innocent and had decided to act

prudently instead of showing courage to the armed

criminals.

Page 17 of 23

20. We may also note here that the scooter in which

Kamla Rani was travelling, was a dowry gift by her

father and the appellant Surendra after informing the

father about the incident, left the scooter in his

custody. Only then, Surendra rushed back to his own

village to inform about the incident to his brother and

father. Next day, the same scooter was recovered by

the police from the residence of Baldev. This would

corroborate that Baldev learnt of the crime from the

appellant Surendra. If Surendra was actually involved

in the crime, would he have straight away proceeded to

the village of the deceased to inform her father of the

incident. The appellant may not have confronted the

robbers nor suffered any injury. But this by itself

cannot in our view lead to an inference that it was he,

who murdered Kamla Rani.

21. Another key link in the chain of circumstances to

connect Surendra with the murder was the fact that he

was the last person to be seen alive with Kamla Rani

and his alleged unnatural conduct after the incident.

On being confronted with the armed miscreants, Surendra

perhaps was too intimidated to offer any fight or

Page 18 of 23
resistance. The accused did not try to do anything

valiant at the place of occurrence and instead straight

away drove down to inform the deceased’s father, at his

village. With this information, Baldev managed to

lodge the FIR. The police seized the scooter the next

day from Baldev’s residence. The scooter was a dowry

gift and following the death of the newly married Kamla

Rani, Surendra might have considered it appropriate to

entrust the scooter to the deceased’s father. The FIR

and the scooter seizure memo (Exbt Ka-2) clearly show

that Surendra did not run away as it has been assumed

by the courts below. Confronted by the armed robbers,

Surendra may not have counter attacked to invite injury

upon himself but this by itself can’t be construed as

suspicious conduct. Yet his post incident conduct was

found to be suspicious enough by the courts below, to

link him with the murder. In the present case, no

criminal act is attributed to Surendra and conspiracy

between him and the two armed miscreants is not shown.

Therefore to link the appellant with the murder is

nothing more than a matter of surmises and conjectures.

In fact, the evidence on record is consistent with the

Page 19 of 23
statement given by Surendra under Section 313 of the

CrPC where he stated that near the forest area of

Bathnor village, two armed miscreants stopped the

scooter and shot his bhabhi and looted away the

jewellery from her person. The appellant immediately

informed about the incident to the father of the

deceased. Thereafter he has also informed Ramveer

(husband of the deceased). Then Surendra, Ramveer and

their father Om Prakash reached the police station with

the Gram Pradhan. But appellant Surendra, Om Prakash

and Ramveer were detained on suspicion by police.

Reading the evidence in the case, we feel that

Surendra’s explanation in his Section 313 statement is

quite plausible but was not appropriately appreciated

which has led to failure of justice against the

accused.

22. Similarly for the husband Ramveer, there is no

direct evidence to establish his role in the incident.

As his conviction is entirely based on a conspiracy

theory, it is essential to determine whether there was

an agreement between the parties for doing an unlawful

act and it must emerge clearly from evidence that there

Page 20 of 23
was meeting of mind towards a common goal between

Ramveer and his brother and also between Ramveer and

the two armed robbers. The case evidence on record does

not however establish any such agreement between

Ramveer and the other accused. Conspiracy is a matter

of inference and inference must be based on solid

evidence. In case of any doubt the benefit must

inevitably go to the accused. The 2nd appellant’s

conviction simply because of his dislike for the

deceased, even if accepted to be correct, would not in

our opinion be justified in the absence of any evidence

either direct or of conspiracy, to link him with the

crime.

23. The conspiracy theory to kill Kamla Rani, only

because she was not liked by her husband is far too

improbable to accept since the prosecution failed to

present any evidence to show meeting of minds and

common intention of all accused. Ramveer may not have

been happy with his wife but this by itself does not

establish that he hatched a conspiracy with his brother

Surendra and his father Om Prakash (who died during

trial), to kill Kamla Rani. The simple fact of being

Page 21 of 23
unhappy with a person even if accepted, do not provide

a strong enough motive to hatch a conspiracy to

eliminate the person. But this aspect was ignored by

the Court below to attribute motive for the murder. In

our assessment the motive element in the chain of

circumstances is not acceptable and the benefit of the

broken link must be made available to the appellants.

24. In view of the foregoing, we are of the

considered opinion that there are several missing

components in the chain of circumstantial evidence and

the High Court misdirected itself in finding support

for conviction on such unclinching evidence. The

innocence of the appellants is a distinct possibility

in the present matter and when two views are possible

the benefit must go to the accused. The impugned

judgment is accordingly set aside with direction for

immediate release of both appellants. It is ordered

accordingly.

Page 22 of 23

25. The appeal stands allowed with the above order.

………………………………………………………J.

[ROHINTON FALI NARIMAN]

………………………………………………………J.

B.R. GAVAI]

………………………………………………………J.

HRISHIKESH ROY]

NEW DELHI
APRIL 20, 2021

Page 23 of 23



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