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Supreme Court of India
Surendra Kumar vs State Of Uttar Pradesh on 20 April, 2021Author: 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,
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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;
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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.
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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.
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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
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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
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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
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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)
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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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