Surender Singh v. State (NCT of Delhi)

plea of grave and sudden provocation taken by the appellant 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, do not hold any ground – Defence not been able to establish a case of private defence by any evidence – Eye witness accounts of police personnels who were all present at the Police Station at that point of time, establish a case of murder beyond any reasonable doubt – Thus, the nature of weapon used; number of gun shots fired at the deceased; part of the body where gun shots are fired, all point towards the fact that the appellant was determined to kill the deceased and ultimately, he achieved his task – Not a case of any lesser magnitude, and definitely not culpable homicide not amounting to murder – Facts do not even remotely make out any case under exception 1 to s.

300, or under any other exceptions to s. 300 IPC – Interferance with the findings of the courts below not called for – Evidence Act, 1872 – s. 105. [Paras 19-26] Penal Code, 1860 – s. 300 exception 1 – Culpable homicide when not amounting to murder – Provocation when grave and sudden to bring the case under exception 1 to s. 300: Held: In order to convert a case of murder to a case of culpable homicide not amounting to murder, provocation must be such that would temporarily deprive the power of self-control of a “reasonable person” – Provocation itself is not enough to reduce the crime from murder to culpable homicide not amounting to murder – Time gap between this alleged provocation and the act of homicide; the kind of weapon used; the number of blows, etc, is also to be seen – 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. [Para 25] Criminal trial – Cross-examination of witness deferred by two months – Effect: Held: Such long adjournment after examination-in-chief, should never be given – 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 Digital Supreme Court Reports [2024] 7 S.C.R. 165 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 – Courts should be slow in deferring these matters – This practice is not a healthy practice – Mandate of s.

231 Cr.PC and the law laid down on the subject to be followed in its letter and spirit – Code of Criminal Procedure, 1973 – s. 231.[Paras11,13] Case Law Cited State of U.P v. Shambhu Nath Singh [2001] 2 SCR 854 : (2001) 4 SCC 667; Ambika Prasad v. State (Delhi Admn.) [2000] 1 SCR 342 : (2000) 2 SCC 646; Mohd. Khalid v. State of W.B. [2002] Suppl. 2 SCR 31 : (2002) 7 SCC 334; State of Kerala v. Rasheed [2018] 13 SCR 587 : (2019) 13 SCC 297; State of M.P. v. Ramesh [2004] Suppl. 6 SCR 152 : (2005) 9 SCC 705; Salim Zia v. State of U.P. [1979] 2 SCR 394 : (1979) 2 SCC 648; K.M. Nanavati v. State of Maharashtra [1961] 1 SCR 497 : AIR 1962 SC 605 –referred to. List of Acts Penal Code, 1860; Evidence Act, 1872; Code of Criminal Procedure, 1973. List of Keywords Murder; Culpable homicide not amounting to murder; Plea of self defence; Power of self-control; Grave and sudden provocation; Motive; Testimony of the eye witnesses; Private defence; Burden of proof; Case under exception 1 to s.

300 IPC; Deferring of cross- examination of witness; Long adjournment after examination-in- chief; Fairness of the trial. Case Arising From CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.597 of 2012 From the Judgment and Order dated 18.05.2011 of the High Court of Delhi at New Delhi in CRLA No.202 of 2008 Appearances for Parties S K Agarwal, Sr. Adv., Arun K. Sinha, Rakesh Singh, Ms. Anjali Rajput, Sumit Sinha, Rohan Goel, Abhinav Mutyalwar, Vijay Raj Singh Chouhan, Advs. for the Appellant. Surender Singh v. State (NCT of Delhi) 166 [2024] 7 S.C.R. Satyajit A. Desai, Adv. (Amicus Curiae) Mrs. Aishwarya Bhati, A.S.G., Mukesh Kumar Maroria, Ms. Ameya Vikrama Thanvi, Mrs. Chitrangda Rastaravara, Santosh Kumar, Ms. Sweksha, Ms. Poornina Singh, Chinmay Mehta, Advs. for the Respondent. Judgment / Order of the Supreme Court Sudhanshu Dhulia, J. Judgment

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.

We have heard the learned counsel for the appellant as well as for the State at length.

As the facts of the case would reveal the present case is of a brazen murder, committed inside a Police Station in Delhi. 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!

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.

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 Digital Supreme Court Reports [2024] 7 S.C.R. 167 heard sounds of fire and then saw the deceased running towards the Duty Officer’s room; 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.

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.

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 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!

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.

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 police station to kill the appellant and the appellant used his weapon only in self defence, but unfortunately the deceased was killed. Surender Singh v. State (NCT of Delhi) 168 [2024] 7 S.C.R. 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.

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

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), Surender Singh v. State (NCT of Delhi) 170 [2024] 7 S.C.R. 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 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.

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.

This Court had, on more than one occasion, condemned this practice of the trial court where examinations are deferred without sufficient Digital Supreme Court Reports [2024] 7 S.C.R. 171