Supreme Court of India
SUNDER SINGHversusSTATE OF UTTARANCHAL
- Citation
- 2010 INSC 621
- Decided
- 16 September 2010
- Disposal
- Dismissed
- Bench
- V S SIRPURKAR
Holding
The Supreme Court upheld the conviction and death sentence, finding the evidence reliable and the case to qualify as a rarest of rare murder.
Summary
The appellant Sunder Singh was convicted for the murder of six members of his cousin's family by setting their house on fire with petrol, closing the door, and slashing one victim with a sword. The prosecution relied on the surviving victim's eyewitness testimony, the dying declarations of two victims, and forensic evidence of petrol‑filled jerry cans, a sword and a pistol. The Supreme Court examined the credibility of the surviving witness despite minor contradictions, held that the dying declarations were voluntary and trustworthy even without a doctor's certification, and found the investigation and Section 313 examination, though imperfect, not fatal to the case. Applying the "rarest of rare" doctrine, the Court concluded that the pre‑meditated, extremely brutal and depraved nature of the crime warranted the death penalty. Consequently, the Court dismissed the appeal, affirming the conviction and death sentence.
Issues considered
- The adequacy of the evidence, including eyewitness testimony and dying declarations, to sustain a conviction under IPC s.302, s.307 and s.436.
- Whether a dying declaration made by a surviving victim can be used as substantive or corroborative evidence without a medical certification of fitness.
- The propriety of imposing the death penalty under the "rarest of rare" doctrine in the present facts.
- The sufficiency of the investigation and the conduct of the Section 313 examination of the accused.
- The impact of contradictions and omissions in the surviving witness's statements on her credibility.
Legislation cited
- Code of Criminal Procedure, 1973s. 162, s. 164, s. 313
- Indian Evidence Act, 1872
- Indian Penal Code, 1860s. 302, s. 307, s. 436
Subjects
murdergruesome murderdeath sentencerarest of raredying declarationeyewitness testimonyinvestigationSection 313 CrPCIPC 302sentencing
Judgment
[2010] 11 S.C.R. 927
SUNDER SINGH A
V.
STATE OF UTTARANCHAL
(Criminal Appeal No. 1164 of 2005)
SEPTEMBER 16, 2010
B
[V.S. SIRPURKAR AND A.K. PATNAIK, JJ.]
Penal Code, 1860: s. 302 - Gruesome murders -
Accused allegedly put house on fire, when victim family was
having dinner inside, and locked the house from outside - C
When one victim tried to escape, accused gave sword attack
on his neck - All the victims except one succumbed to burn
injuries ~ Dying declaration - Surviving victim suffered 70%
bum injuries - Accused remaining absconded - Found after
12 years- Trial court convicted accused u/s.302 and awarded o
death sentence - High Court affirmed the same - On appeal,
held: No reason to interfere with the order of conviction and
sentence - The dying declaration was found to be voluntary
and truthful - Surviving victim was a natural witness and she
herself was injured - The accused was her husband's cousin E
thus no scope for mistaken identity moreso when the house
was on fire and there was ample light available for identifying
the accused - Her evidence was accepted by courts below
and was found to be reliable - There were some contradictions
and omissions in her evidence but they were not substantial F
enough so as to affect the credibility of her evidence -
Sentence/Sentencing - Evidence - Dying declaration.
Sentence/Sentencing: Death sentence - House set on
fire while victim family was having dinner inside - Door bolted
from outside - Sword blow given on neck of one victim who G
tried to escape - Entire family except one succumbed to burn
injures - Accused held guilty of murder - Courts below held
that it was rarest of rare case and awarded death sentence -
Held: No reason to interfere with the order of sentence - The
927 H
928 SUPREME COURT REPORTS [2010] 11 S.C.R.
A offence was committed with pre-meditated mind and in a cruel
and cold blooded manner - There was no immediate
provocation and all this was only due to previous enmity over
property - Out of five persons who lost their life, two were
barely 16 and 19 years of age - All of them were without any
B arms and were helpless - The accused showed scant respect
for the law by absconding for about 12 years- Circumstances
of the case not sufficient to mitigate the horrible crime - Pe,nal
Code, 1860 - s. 302.
Code of Criminal Procedure, 1973: s.313 - Trial courts
C ought to be extremely careful about the questions to be put
to the accused persons in examination uls.313 - Record
must show that meticulous care is taken to put all the
incriminating circumstances to the accused - Trial courts
sometimes are extremely casual about this aspect - They are
D expected to be extremely careful in this behalf -
Administration of criminal justice - Criminal trial.
Evidence:
Contradictory statement - Held: If the witness is not
E specifically given an opportunity to explc;iin contradiction, it
cannot be taken note of
Dying declaration - When a witness making dying
declaration survives, the said declaration does not become
F substantive evidence and it can only be corroborative
evidence of oral testimony.
Investigation-Duty of investigating agency - Held:
Investigation should not be conducted in casual and careless
G or slipshod manner - Incompetent investigation should not
result in the accused getting an unfair advantage - Need to
give regular police service to distant villages - Policing
system.
The prosecution case Jras that on the fateful day, the
H
SUNDER SINGH v. STATE OF UTTARANCHAL 929
victim family was taking dinner on the ground floor of A
their house. The accused came there with jerry cans filled
with petrol and a burning torch and after pouring petrol
inside the room and after setting fire with the torch, closed
the door from outside. When one of the victim managed
to come out, the accused gave him a sword blow on the B
neck. As a result, the victim fell down and died outside
the house. The other five family members also sustained
severe burn injuries. PW-2 informed the patwari, PW-13,
about the incident. When PW-13 reached the spot along
with the other witnesses, PW-3 and PW-4, two victims c
narrated the incident to them. The dying declaration of
two victims were recorded by the magistrate. One of the
victim who gave dying declaration died while the other
who suffered 70% burn survived. The injured victims
were rushed to the hospital. Some victims died on the way 0
and some in the hospital. The accused remained
absconded and was found after 12 years. the matter was
then committed to Sessions.
The trial court convicted the accused under Sections
302, 307 and 436 IPC on the basis of the evidence of PW- E:
1, the dying declaration and the other substantive
evidence and awarded death sentence. The High Court
confirmed the conviction and the sentence. The instant
appeal was filed challenging the conviction and the
sentence. F
Dismissing the appeal, the Court
HELD: 1.1. PW-1 was a natural witness and there
could be no dispute about her presence on the spot. She
was also an injured witness having suffered 70% burns. G
Considering the overall evidence which was accepted by
the trial court arid the High Court, PW-1 was found reliable
and the courts below committed no error in accepting her
evidence. There were undoubtedly some contradictions
H
930 SUPREME COURT REPORTS [2010] 11 S.C.R.
A and omissions in her evidence but they were not
substantial enough so as to affect the credibility of her
evidence. Unless a contradiction is proved by· putting it
to the person who records the original statement, such
contradiction is of no consequence. If the witness is not
B specifically given an opportunity to explain suc:h
contradiction, it cannot be taken note of. The seizure-
panchnamas duly proved by PW-4 showed that there
were three jerry cans found which were cut from the
above, and as such, were open and they were smelling
c of petrol. Therefore, there can be no dispute that actually
the accused had carried the three jerry cans full of petrol
and the witness had seen the accused pouring petrol
from one of them. It can also be that the accused might
have utilized the two jerry cans in sprinkling. the petrol
on the roof from outside and then opening the door,
0
threw the petrol from the third jerry can remaining with
him. The witness had after all seen the three jerry cans
being presented in the court and had, therefore, tried to
improve upon the story. However, if the three jerry cans
were actually found by PW-13 immediately on the spot in
E a semi-burnt condition, the so-called contradiction loses
all its rigor. PW-1 was very candid when she admitted
before the court that she had not stated that her husband
was cut by the accused and that she had not, therefore,
referred to the pistol in her statement. She was also
F candid in saying that she had not seen the accused
assaulting her husband. She then asserted that the
accused assaulted her husband on his neck only once.
She also asserted that besides the accused, she did not
see anyone else on the spot. All this suggested her
G truthfulness. She did not implicate anybody else than the
accused. Therefore, the fact that the accused was alone
and further that one of the victim after opening the door,
ran out and was thereafter immediately found cut would
lead to the only inference that it was the accused alone
H
SUNDER SINGH v. STATE OF UTTARANCHAL 931
who assaulted him. At that time, the whole house was A
burning. The witness explained that the other people
came and extinguished the fire, otherwise the whole
house would have burnt. There was, therefore, enough
light for the witness to see the accused. There was
nothing to disbelieve this witness on account of the so- B
called contradictions. In fact, the presence of PW-1
alongwith the other victims on the spot, was not
challenged. Had she not been present there, she would
not have suffered 70% burns. She thus had the best
opportunity to watch everything. She herself had lost all C
her kith and kin including her husband and, therefore, she
would not be interested in screening the real accused.
She cannot be viewed as the interested person. In fact,
the doctor, PW-12, in his first medical statement
specifically mentioned that she was fully conscious
when she was examined at the hospital. Therefore, it 0
cannot be said that she was not able to see and
comprehend. [Paras 11, 12, 13] [943-E-F-H; 944-A-B; 945-
B-E; 946-D-H; 947-A-H]
1.2. There can be no dispute that the dying E
declaration can be made a basis of conviction. For basing
the conviction on the dying declaration, the declaration
must pass all the tests of voluntariness, the fit condition
of mind of the declarant and the declarant was not being
influenced by any other factors. The critical examination. F
of the dying declaration showed that it was voluntary,
truthful and uninfluenced by any other factor. The only
criticism against this dying declaration was that the
magistrate had not got it certified by the doctor to the
effect that the witness was in a fit state of mind to make G
the dying declaration. However, the magistrate (PW-9)
very specifically asserted that he had obtained the
opinion of the doctor,. but there was no cross-
examination at all on this very vital aspect. Therefore, the
assertion that he had asked the doctor and was H
932 SUPREME COURT REPORTS [2010) 11 S.C.R.
A convinced that the injured was in a fit position to make
a dying declaration had gone unchallenged. This witness
very specifically stated that he completed all the
formalities and had taken all the cautions. After examining
all the circumstances, particularly, the evidence of the
B magistrate, the dying declarations of PW-1 and the other
victim did pass the test of credibility. There can be no
dispute that when a witness making a dying declaration
survives, the said dying declaration does not remain
substantive evidence. Of course, the dying declaration
C of PW-1 cannot be substantive evidence and it can only
be corroborative evidence of oral testimony since she
survived. However, the evidence of the other declarant
did become substantive evidence and wholly reliable.
The trial court and the appellate court committed no error
in relying on that dying declaration. [Paras 12, 18, 19)
0
[945-E-H; 946-A-C; 950-D-F; 951-B-D]
Lax man v. State of Maharashtra 2002 (6) SCC 710 -
relied on.
E Shanmugham @ Ku/andaivelu v. State of Tamil Nadu
(2002) 10 SCC 4; P. V. Radhakrishnan v. State of Karnataka.
(2003) 6 SCC 443; Ramprasad v. State of Maharashtra 1999
(5) sec 30 - referred to.
1.3. The assertion of PW-3 in the examination-in-chief
F that one of the victim had told him that when they were
having their food at that time the accused had poured the
petrol and had put the house on fire, was not challenged
In the cross-examination. The only challenge in the
cross-examination was that he had himself not seen the
G incident. The evidence of this witness also thus went
unchallenged. Though the Panchnamas on which these
two witnesses have put their signatures, were put to the
accused, however, this fact of oral dying declaration to
both of them was not put to the accused. It is really a
H matter of concern that even the trial Judge did not frame
SUNDER SINGH v. STATE OF UTIARANCHAL 933
the question in Section 313 Cr.P.C. examination A
specifically putting the names of these two witnesses.
Thereby a very important circumstance is lost. The trial
courts ought to be extremely careful about the questions
to be put to the accused persons in examination under
Section 313 Cr.P.C. Record must show that meticulous B
care is taken to put all the incriminating circumstances
to the accused. It is found that the trial courts sometimes
are extremely casual about this aspect and fail to put all
the incriminating circumstances to the accused. The trial
courts are expected to be extremely careful in this behalf. c
{Para 21] [951-G-H; 952-A-G] '
1.4. Nothing was brought in the cross-examination of
the doctors excepting the suggestion to practically all of
them that if there was an accidental fall of a can
containing oil or petrol in the hearth, there could be a D
possibility of the witnesses receiving burn injuries. Such
possibility was merely an imagination and there was no
material whatsoever to see any such possibility. This is
all the more true considering that one of the victim was
given a blow by a sword resulting in his instantaneous E
death. The defence thus could not get any advantage
from the medical evidence. [Para 23] [954-B-C]
2. The investigation in the instant case was not up
to the mark. In the distant hilly areas in the State of F
Uttarakhand, the investigation is conducted by village
police through a Patwari who is the lowest officer in the
revenue department. Much more could have been done
in the case. Some of the victims were alive when the
investigating officer allegedly reached the spot as per his G
own evidence. He could have recorded their dying
declarations. That was not done. Even the FSL report
was not obtained and filed. The trial was started only after
the arrest of the accused after 12 years. All this suggested
that the investigation was conducted in a very casual and
H
934 SUPREME COURT REPORTS [2010] 11 S.C.R.
A careless manner. Same was the story of prosecution. The
prosecuting agency did not even bother to look into the
questions before they were asked to the accused in his
Section 313 Cr.P.C. examination. Merely because this
heinous offence took place in the remote corner of
B District Bageshwar which at the time when the offence
took place was Almora District, it did not mean that the
investigating agency could do some slipshod
investigation and thereafter the prosecution could be
allowed to be equally casual as it appears to have been
C in conducting the prosecution. This also speaks about
the duty of the trial court judge who cannot be a mere
spectator to what goes on in the name of the trial. The
trial judge has to control the trial by active application of
mind. A time has come when the village police system
prevalent in the State of Uttaranch~I in respect of distant
0
areas should be changed and the distant villagers be
given the protection and services of the regular police.
It is really strange that the four Districts which are in the
plains have had advantage of the police system while in
the remaining Districts, the distant part of those Districts
E are deprived of a police system. Such deprivation
undoubtedly results in affecting the law and order
situation, the detection of crimes and the protection of
the poor villagers. In fact effective policing is the need
of the whole society, urban as also rural. However, all
F these factors have not prejudiced the accused. Even with
these factors, the prosecution fully proved the heinous
offence committed by him. The incompetent
investigation should not result in the accused getting any
unfair advantage. [Para 24] [954-D-H; 955-A-E]
G
3. As regards the sentence, it must be said that the
instant case is one of the rarest of the rare cases, in
which the whole family was wiped out. Five persons lost
their life while the sixth person, a helpless lady, who is
H
SUNDER SINGH v. STATE OF UTTARANCHAL 935
now left to be the only member of the family, has to live A
her life with 70% burn injuries. The murder was
committed in a cruel, grotesque and diabolical manner.
The act of pouring petrol when all the family members
were together in a room and setting it to fire and then
closing the door from outside was the most fouled act, B
by which the accused actually intended to burn all the
persons inside the room. Barring PW-1, everyone in that
room was burnt. When one of the victim somehow, was
able to open the room and come out, even he was not
spared and almost beheaded by the accused. It is clear c
that the accused had done this with pre-meditated and
cold-blooded mind, as he had taken the trouble of
carrying petrol to his own cousin's house. He was also
carrying a sword, and probably prepared himself to fire
on the complainant party, as a pistol with two bullets in D
it was also found on the spot. The accused had shown
extreme depravity of mind in causing a sword blow on
the neck of the victim who himself was burnt and was
trying to escape. A murder by burning, by itself, would
be a very cruel act. The agony caused to the dying
E
victims because of their burn injuries would be
enormous. Again, when it is seen that there was no
immediate provocation to the accused and all this only
was on account of the enmity going on in respect of the
family lands, the enormousness of the crime is increased
'
by many folds. Out of the five persons who lost their life, F
two were barely 16 and 19 years old. Their life was nipped
in the bud. All the victims were without any arms and
were helpless. They could not have even saved
themselves and did succumb to the burn injuries. The
balance sheet of the aggravating circumstances thus G
exceeds the mitigating circumstances. In fact, there was
no mitigating circumstance in this case. The accused
showed scant respect for the law by remaining
absconding for about 12 years and only because of that
H
936 SUPREME COURT REPORTS [2010] 11 S.C.R.
A he could not be brought to books. It is only his accidental
arrest and being lodged in another jail that the
prosecuting agency was able to prosecute him. The age
is not on the side of the accused. Insofar as the other
circumstance of the accused remaining under the
B shadow of death sentence right from 2004 is concerned,
the circumstance, by itself, is not sufficient to mitigate his
horrible crime. [Para 35] [965-D-H; 966-A-H]
Bachan Singh v. State of Punjab AIR 1980 SC 898;
C Machhi Singh & Ors. v. State of Punjab AIR 1983 SC 957;
Devender Pal Singh v. State of NCT of Delhi AIR 2002 SC
1661; Atbir v. Govt. of NCT of Delhi JT 2010 (8) SC 372;
Ravji Alias Ram Chandra v. State of Rajasthan 1996 (2) SCC
175; Dhananjoy Chatterjee v. State of West Bengal 1994 (2)
SCC 220; State of UP. v. Dharmendra Singh & Anr. 1999
D (8) SCC 325; Triveniben v. State of Gujarat 1988 (4) SCC
574; Sushi/ Murmu v. State of Jharkhand AIR 2004 SC 394;
Ediga Anamma v. State of A.P. AIR 1974 SC 799; Gurdev
Singh & Anr. v. State of Punjab with Piara Singh & Anr. v.
State of.Punjab AIR 2003 SC 4187; Rajendra Prasad v. State
E of Uttar Pradesh 1979 (3) SCC 646; A. Devendran v. State
of Tamil Na du 1997 (11) SCC 720; Kumudi Lal v. State of
UP. 1999 (4) SCC 108; Om Prakash v. State of Haryana
1999 (3) SCC 19; Mohd. Chaman v. State (NCT of Delhi)
2001 (2) SCC 28; Lehna v. State of Haryana 2002 (3) SCC
F 76; Haru Ghosh v. State of West Bengal 2009 (15) SCC 551;
Dilip Premnarayan Tiwari & Anr. v. State of Maharashtra etc.
2010 (1) SCC 775; Swamy Shraddananda @ Murali
Manohar Mishra v. State of Karnataka AIR 2008 SC 3040-
referred to.
G Case Law Reference:
1999 (5) sec 30 referred to Para 12
2002 (6) sec 11 o relied on Para 18
H (2002) 1o sec 4 referred to Para 18
SUNDER SINGH v. STATE OF UTTARANCHAL 937
(2003) 6 sec 443 referred to Para 18 A
AIR 1980 SC 898 referred to Para 30, 32
AIR 1983 SC 957 referred to Para 30
AIR 2002 SC 1661 referred to Para 30
B
JT 2010 (8) SC 372 referred to Para 30, 32, 35
1996 (2) sec 115 referred to Para 31
1994 (2) sec 220 referred to Para 31
c
1999 (8) sec 325 referred to Para 31
1988 (4) sec 574 referred to Para 31
AIR 2004 SC 394 referred to Para 32
AIR 1974 SC 799 referred to . Para 32 D
AIR 2003 SC 4187 referred to Para 33
1979 (3) sec 646 referred to Para 33
1997 (11) sec 120 referred to Para 33 E
1999 (4) sec 108 referred to Para 33
1999 (3) sec 19 referred to Para 33
2001 (2) sec 28 referred to Para 33
F
2002 (3) sec 76 referred to Para 33
2009 (15) sec 551 referred to Para 34
2010 (1) sec 775 referred to Para 34
G
AIR 2008 SC 3040 referred to Para 34
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1164 of 2005.
From the Judgment and order dated 20.07.2005 of the H
938 SUPREME COURT REPORTS [2010] 11 S.C.R.
A High Court of Uttaranchal at Nainital in CRLR No. 7 of 2004
and CRLJA No. 249 of 2004.
Y.P. Singh, C. Siddharth and P. Purudura for the Appellant.
S.S. Shamshery and Jatinnder Kumar Bhatia for the
B Respondent.
The Judgment of the Court was delivered by
V.S. SIRPURKAR, J. 1. Appellant herein challenges the
C judgment of the High Court affirming the judgment passed by
the Sessions Court. The Sessions Judge convicted the
appellanUaccused Sunder Singh for offences under Sections
302, 307 and 436, Indian Penal Code (IPC). While he was
awarded the death sentence along with a fine of Rs.5,000/-
D and in default to suffer further rigorous imprisonment for one
year, he was given the punishment of seven years along with
fine of Rs. 5,000/- and in default to suffer further rigorous
imprisonment for one year separately on the other two counts.
2. The incident in this case had taken place on 30 .6 .1989
E in village Mahargheti, Patwari Circle Dangoli in the newly
formed District Bageshwar (which was part of District Almora
at the time of incident). In this ghastly incident, Pratap Singh,
his wife Nandi Devi, his elder son Balwant Singh (aged about
28 years), another son Prem Singh (aged about 19 years),
F daughter Kamla (aged about 16 years) I
lost their lives while
wife of Balwant Singh, namely, Vim la,I Devi (PW-1) sustained
grievous burn injuries. Five victims who lost their lives including
Balwant Singh were roasted alive atld died either on the spot
1
or while being taken to the hospital or in the hospital. Balwant
G Singh, however, was almost beheaded while he also suffered
the burn injuries. The prosecution alleged that this incident
took place at about 10 p.m. when all the victims were taking
their dinner in the ground floor room of their house. The
appellanUaccused came there with jerry can containing petrol
H and burning torch and threw the petrol in the room and ,after
SUNDER SINGH v. STATE OF t.JTTARANCHAL 939
[V.S. SIRPURKAR, J.] --°'~
setting fire by torch, he shut the door of the room. Though A
Balwant Singh was in flames he managed to come out of the
room by opening the door. However, as soon as he came out
of the room, the accused who was still waiting there gave him
a sword blow on the neck because of which he fell down dead
out side the house. The other five family members who B
sustained severe bums also died barring Vimla Devi who alone
survived. Nandi Devi died on the way to the Primary Health
Centre at Baijnath while Pratap Singh also died there itself.
l<amla and Prem Singh died in the District hospital, Almora
later on, where they were shifted from Baijnath. · c
3. Informant Kheem Singh (PW-2) prepared a written
report and handed over to the Circle Patwari, Hyat Singh (PW-
13). In fact Hyat Singh (PW-13) came almost immediately after
the incident and so did the other witnesses like Chanar Singh
(PW-3) and Rewadhar (PW-4). At the time when they reached D
the spot almost simultaneously, Pratap Singh was alive, who
told these witnesses that accused Sunder Singh had burned
them by throwing petrol from jerry can and by torching the
house thereafter. Even Vimla Devi (PW-1), the wife of Balwant
Singh told Hyat Singh (PW-13) about the incident and also E
about the attack on Balwant Singh by the accused. Hyat Singh
(PW-13) started the investigation. He inspected the burnt
house and the spot where Balwant Singh's body was lying. He
found that Balwant Singh was dead and had suffered a serious
injury on his neck. The other injured barring Balwant Singh F
were sent first to the Primary Health Centre, Baijnath. Nandi
Devi, however, died even before reaching the Primary Health
Centre, Baijnath, while Pratap Singh is said to have died after
reaching the Health Centre. Dr. K.C. Joshi (PW-12) examined
Vim la Devi (PW-1) and noted the injuries suffered by her, so G
also Kamla and Prem Singh were examined by him, and he
noted their injuries in the medical certificates (Exhibits Ka-9,
Ka-10 and Ka-11 ). Thereafter, the injured were sent to District
Hospital, Almora in view of the seriousness of their injuries.
When the three injured were at District Hospital, Almora, the H
940 SUPREME COURT REPORTS [2010) 11 S.C.R.
A dying declarations of Prem Singh and Vim la Devi (PW-1) were
recorded on 1. 7 .1989 by Narender Singh Patel (PW-9), Sub-
Divisional Magistrate, Baramandal, District Almora. Before this,
Hyat Singh (PW-13) had completed his inspection of all the
spots and had attached burnt radio, damaged plastic gallons,
B burnt breads and cut pieces of can from the scene of offence.
He also found a cover of the sword (described as 'Khol') and
also a pistol which had two bullets in it. He also held the
inquest on the dead body of Balwant Singh and thereafter on
the body of Pratap Singh and Nandi Devi. These bodies were
c sent for post mortem. In the District Hospital, Almora, Prem
Singh died on 1.7.1989 itself while Kamla died later on after
the treatment. Vimla Devi (PW-1), however, miraculously
suNived. The inquests and the post mortem on the dead bodies
of Kamla and Prem Singh were also conducted later on by the
D doctors. All the five dead bodies had suffered extensive burn
injuries, almost to the extent of 70% or 80%. Vimla Devi (PW-
1), however, miraculously escaped and suNived, though she
had also suffered 70% of the burn injuries. After the preliminary
investigation was completed by Hyat Singh (PW-13), the same
E was entrusted to C.B.C.l.D. and Inspector K.R. Tamta (PW-
14), who completed the remaining formalities of the
investigation. The accused was absconding. He was found
only in July, 2002 after a lapse of 12 years. It was then that the
matter was committed to Sessions on the basis of the
chargesheet already filed.
F
4. The chargesheet was for the offences under Sections
302, 307 and 436, IPC. The Sessions Judge framed charges.
Fourteen witnesses were examined in support of the charges
including Vim la Devi (PW-1) who was the injured eye witness.
G Kheem Singh (PW-2), who was the author of the First·
Information Report (FIR), was examined to prove the same.
Chanar Singh (PW-3) and Rewadhar (PW-4) were the
witnesses who reached the spot almost immediately after the
incident. They were examined as the panch witnesses. Dan
H Singh (PW-5) also acted as a panch on the inquest, so also
SUNDER SINGH v. STATE OF UTTARANCHAL 941
[V.S. SIRPURKAR, J.]
Daya Krishna (PW-7) and Ramesh Singh Rotella (PW-8) were A
examined to prove the inquest panchnamas on the dead
bodies. Narender Singh Patel {PW-9), Sub-Divisional
Magistrate, Baramandal, District Almora was examined to
prove the dying declarations of Vim la Devi (PW-1) and Prem
Singh, which was recorded by him on 1.7.1989. Dr. N.D. B
Punetha (PW-6), Dr. H.G.S. Manral (PW-10) and Dr. Nanda
Vallabh Sharma (PW-11) were the doctors conducting the post
mortem, while Dr. K.C. Joshi (PW-12) was the doctor who
had examined Vim la Devi (PW-1) and Prem Singh and had
issued medical certificates to them. Hyat Singh (PW-13), the c
investigating Patwari and Inspector K.R. Tamta (PW-14) were
examined as.the investigating witnesses.
5. The accused abjured his guilt. He raised the defence
of false implication on account of the enmity due-!o-land.
However, learned Sessions Judge came to the conclusion on D
the basis of the evidence of Vim la Devi (PW-1) and the dying
declaration of Prem Singh and the other substantive evidence
that it was accused Sunder Singh who had torched the ground
floor room on the fateful day resulting in the victims being
roasted alive. It was also held that the prosecution had proved E
that the accused had dealt a sword blow on Balwant Singh
almost beheading him and on that count proceeded to convict
the accused and awarded the sentences which have already
been mentioned.
F
6. Since the death sentence was ordered there was a
death reference made in the High Court. The accused also
filed an appeal challenging his conviction. The High Court came
to the conclusion that the Sessions Judge was right in
convicting the accused. The High Court also endorsed the G
opinion of the Sessions Judge that this was a rarest of rare
case and, therefore, affirmed the death sentence awarded to
the accused by the Sessions Judge. The judgment affirmed
by the High Court has now fallen for our consideration.
H
942 SUPREME COURT REPORTS [2010] 11 S.C.R.
A 7. Shri Y.P. Singh who was appointed as Amicus Curiae
urged before us that it could not be said that it was the accused
who was the perpetrator of this crime. According to the learned
Counsel, the prosecution was not able to prove the guilt. He
contended that the evidence of Vim la Devi (PW-1) could not
B be accepted as there were inherent pitfalls in her evidence.
Firstly, she was an interested witness and secondly, her ability
to see at night at 10 .O'clock was suspect. We have been
taken through the whole evidence to show that there were
contradictions and material omissions in her evidence. The
C learned Counsel further argued that the so-called dying
declaration by Prem Singh was also a suspect document and
was not creditworthy. He pointed out that tlile said dying
declaration of Prem Singh did not have the endorsement of
the doctor about Prem Singh being in fit condition to make a
dying declaration.
0
8. Lastly, learned Counsel suggested that this could not
be said to be a rarest of rare case and the High Court has
erred in affirming the death sentence.
E 9. As against this, the learned Counsel appearing on
behalf of the State supported the judgment and contended
that the evidence of Vimla Devi (PW-1) was extremely
important and credible and she was herself an injured witness.
He pointed out that being a relative and having lost her near
F and dear ones she is not likely to screen the real offender.
She had all the opportunity to see and since the accused was
the real uncle of her husband, there was no question of any
mi~-identification also. He pointed out that the evidence is
extremely natural and she had not tried to rope in other persons.
G It was further pointed out that there was nothing to suspect the
dying declaration of Prem Singh. As regards the absence of
the endorsement of the doctor, the learned Counsel suggested
that it cannot be forgotten that the said dying declaration is
recorded by an independent witness. He_also pointed out that
the victim was fully conscious and had~survived after the dying
H
SUNDER SINGH v. STATE OF UTTARANCHAL 943
[VS. SIRPURKAR, J.]
declaration for substantial time which would suggest that he . A -
was completely conscious at the time when the dying
declaration was recorded. It was further argued by the learned
Counsel that this was the most dastardly act on the part of the
accused that he not only set the house to fire but also closed
the door thereby he displayed his foul intention to eliminate B
the whole family and he was successful in eliminating the whole
family. Learned Counsel pointed out that two of the victims
were extremely young being 16 years and 19 years old and
had not even seen their lives. The learned Counsel brought to
our notice the fact that the accused remained absconding for c
12 long years. His being remaining absconding for 12 years
was also a clear cut circumstance against him. According to
the learned Counsel, therefore, this was a rarest of rare case.
10. It has to be borne in mind in this case that there is no
scope of a mistaken identity for the simple reason that the D
accused was the real brother of Pratap Singh. Again, because
the house was set to fire there was ample light available for
identifying the accused.
11. The prosecution basically relied on the evidence of E
Smt. Vimla Devi (PW-1) whose evidence was examined by us
very closely. She is a natural witness and there can be no
dispute about her presence on the spot. She is also an injured
witness as she has herself suffered 70% burns. She was very
fortunate to survive. Learned counsel criticized the evidence F
by saying that she had obviously deposed in an unnatural
manner by claiming that the accused was carrying three Jerry
cans, opened them one by one and poured petrol. It was also
pointed out that initially in her statement which was recorded
as dying declaration, she had suggested that the room was G
set to fire by a match stick. In her cross examination, however,
she refuted that claim. A fantastic theory was introduced in her
cross-examination that her husband died because he dashed
against sharp stone. Considering the overall evidence which
has been accepted by the Trial Court and the High Court, we H
944 SUPREME COURT REPORTS [2010] 11 S.C.R.
A are of the clear opinion that this witness is reliable and the
Courts below committed no error in accepting the evidence of
Vimla Devi (PW-1 ). It cannot be forgotten that the witness has
identified the jerry cans, the sword etc. which were lying in her
courtyard. There were undoubtedly some contradictions and
B omissions in her evidence and the dying declaration but in our
opinion they were not substantial enough so as to affect the
credibility of her evidence. She undoubtedly suggested in her
Examination-in-Chief that the accused was carrying jerry cans.
She has referred 'jerry cans' in plurals- "Uske hath me petrol
C va diesel k jerry can thhe". She then identified the three jerry
cans when the three jerry cans, which were attached, were
produced in the Court. She also identified the cover of the
sword and also the pistol which was left behind and was found
by Hyat Singh (PW-13). She has then identified all the other
D material objects like radio etc. In her Cross-Examination, she
again asserted that the accused had three jerry cans, which
she described as gallons. She then described that the caps of
these jerry cans were cut. She could not, however, tell as to
the capacity of the said jerry cans nor could she speak about
their colour. She accepted the suggestion that the accused
E first threw the petrol from one jerry can and then from the
second and the other. She then asserted that they were not
set to fire with the match box on which she was contradicted
with her previous statement, wherein she had suggested that
the accused had set fire by the match stick. This was, by far,
F the only contradiction which was brought in her Cross-
Examination.
12. Very strangely, a suggestion was put to her that since
the accused threw the petrol from three jerry cans one after
G the other, they could run out and catch the accused. In her
further Cross-Examination, however, she admitted that her
statement was properly recorded by Narender Singh Patel
(PW-9), Sub-Divisional Magistrate, Baramandal, District
Almora. She also admitted that she had stated in her dying
H declaration that there was one jerry can. In our opinion, the
SUNDER SINGH v. STATE OF UTTARANCHAL 945
[V.S. SIRPURKAR, J.]
witness, in her dying declaration dated 1. 7 .1989, mentioned A
about one jerry can as she had seen the accused throwing the
petrol from one jerry can. Very strangely, this contradiction
was not got proved from Narender Singh Patel (PW-9), Sub-
Divisional Magistrate, Baramandal, District Almora nor was it
put to him. Unless a contradiction is proved by putting it to the B
person who records the original statement, such contradiction
is of no consequence. The only Cross-Examination of Narender
Singh Patel (PW-9), Sub-Divisional Magistrate was to the effect
that there was no certification on the dying declarations to the
effect that both the witnesses were in fit condition to give the c
statement When we see again the evidence of Vimla Devi
(PW-1 ), even she was not specifically questioned about her
previous statement nor was she given an opportunity to explain
as to why she had made the statement in her evidence that
there were three jerry cans as in her statement in dying D
declaration that there was one jerry can. Unless the witness is
specifically given an opportunity to explain such contradiction,
it cannot be taken note of. The very purpose of putting the
contradiction to the witness is to give an opportunity to him/her
to explain a contradictory statement, if any. There can be no
dispute that when a witness making a dying declaration
E
survives, the said dying declaration does not remain substantive
evidence. However, as held · ' Ramprasad v. State of
Maharashtra [1999 (5) SCC 30] when such dying declaration
has been recorded by a Magistrate then it can be used as a
corroboration to the oral evidence of such witness. This Court F
in the aforementioned decision of Ram Prasad (cited supra)
specifically held that where such statement is recorded by a
Police Officer, its user is barred under Section 162 Cr.P.C.
However, where it is recorded by a Magistrate under Section
164, Cr.P.C. it becomes usable to corroborate the witness as G
proved under Section 157 of the Evidence Act. That is precisely
the case here. We have very critically examined the dying
declaration and we are of the clear opinion that the dying
declaration was voluntary, truthful and uninfluenced by any other
H
946 SUPREME COURT REPORTS (2010) 11 S.C.R.
A factor. We have considered the dying declaration vis-a-vis the
substantive evidence given by this witness. The only criticism
against this dying declaration was that the Magistrate had not
got it certified by the doctor to the effect that the witness was
in a fit state of mind to make the dying declaration. That really
B appears to be the case. However, it can not be forgotten that
in his evidence, the Magistrate Narender Singh Patel (PW-9)
very specifically asserted that he had obtained the opinion of
the doctor. Very surprisingly, there was no cross-examination
at all on this very vital aspect. Therefore, the assertion that he
c had asked the doctor and was convinced that the injured was
in a fit position to make a dying declaration has gone
unchallenged. This witness has very specifically stated that he
completed all the formalities and had taken all the cautions.
13. When we see the Exhibits Ka-30 and 31, which are
D seizure Panchnamas duly proved by Rewadhar (PW-4), it is
seen that there were three jerry cans found which were cut
from the above, and as such, were open. Out of these three
jerry cans, one was white and the others were black. It is
specifically stated in the panchnama that all the jerry cans
E were smelling of petrol. In Exhibit Ka-31, the cut parts of the
jerry cans were shown, which were found lying on some distance
on the Western side of the spot of incident. Therefore, there
can be no dispute that actually the accused had carried the
three jerry cans full of petrol and the witness had seen the
F accused pouring petrol from one of them. It can also be that
the accused might have utilized the two jerry cans in sprinkling
the petrol on the roof from outside and then opening the door,
threw the petrol from the third jerry can remaining with him.
The witness had after all seen the three jerry cans being
G presented in the Court and had, therefore, tried to improve
upon the story. However, if the three burnt jerry cans were
actually found by Hyat Singh (PW-13) immediately on the spot
in a semi-burnt condition, the so-called contradiction loses all
its rigor. The witness was very candid when she admitted
H before the Court that she had not stated that her husband was
SUNDER SINGH v. STATE OF UTTARANCHAL 947
[VS. SIRPURKAR, J.]
cut by the accused and that she had not, therefore, referred to A
the pistol in her statement. She was also candid in saying that
she had not seen the accused assaulting her husband. She
then asserted that the accused assaulted her husband on his
neck only once. She also asserted that besides the accused,
she did not see anyone else on the spot. All this suggests her B
truthfulness. She did not implicate anybody else than the
accused. Therefore, the fact that the accused was alone and
further that Balwant Singh (deceased), after opening the door,
ran out and was thereafter immediately found cut, leads to the
only inference that it was the accused alone who assaulted c
Balwant Singh. It has to be kept in mind that at that time, the
whole house was burning. The witness has explained that the
other people came and extinguished the fire; otherwise the
whole house would have burnt. There was, therefore, enough
light for the witness to see the accused. We, therefore, do not D
find anything to disbelieve this witness on account of the so-
called contradictions. In fact, the presence of this lady alongwith
the other victims on the spot, goes without challenge. Had she
not been present there, she would not have suffered 70% burns.
She thus had the best opportunity to watch everything. It was
suggested that she was an interested witness as the accused E
had enmity with her father-in-law Pratap Singh. It must be
remembered that she herself ti ·d lost all her kith and kin
including her husband and, therefore, she would not be
interested in screening the real accused. We cannot view her
evidence as the evidence of an interested person. In fact, Dr. F
K.C. Joshi (PW-12), in his first medical statement (Exhibit Ka-
9), has specifically mentioned that she was conscious when
she was examined at the Primary Health Centre, Baijnath. The
certificate describes her condition "patient fully conscious,
needs urgent (probably treatment), referred to Hospital, Almora G
for management". Therefore, even at Primary Health Centre,
Baijnath, where she was examined at 9.30 A.M. on the next
day, the patient was fully conscious, thereby it cannot be said
that was not able to see and comprehend.
H
948 SUPREME COURT REPORTS [2010] 11 S.C.R.
A 14. In fact, the way this lady was sitting in the room which
was 10 cubic long and 5 cubic wide she would have had the
best opportunity to see the accused. The High Court has also
taken stock of her inability to tell the colour of the container,
length etc. of the blade of the sword and the omission in her
s statement as regards the pistol which was found lying in the
courtyard after the incident. However, the Sessions Judge as
well as the High court have chosen to accept the evidence of
the witness who has survived 70 % burns. The High Court also
endorsed view of the Sessions Judge that she was wholly
c reliable witness and there was no requirement of corroboration
to her evidence from any other witness. We are, therefore, of
the opinion that the dying declaration is reliable and properly
recorded and truthful and corroborates the oral evidence of
Vimla Devi (PW-1 ). That is a very strong circumstance in favour
D of the prosecution.
15. This takes us to the other material circumstance and
that is the dying declaration of Prem Singh. This dying
declaration was recorded on 01.07.1989 i.e. on the next day
at 3.45 p.m. in the District Hospital, Almora by Narender Singh
E Patel (PW-9). The said dying declaration is Exhibit Ka-6. In
fact this was a witness who had recorded the dying declaration
of Vimla Devi (PW-1) also. In his evidence, Narender Singh
Patel (PW-9) asserted that before recording the dying
declaration of Prem Singh, he had sought the opinion of the
F doctor about the witness being in fit state of mind to make a
dying declaration. He also asserted that the witness was not
in any kind of mental pressure nor was he depressed and was
fully conscious and in possession of the mental faculties. The
witness also asserted that before recording the dying
G declaration he had taken all the precautions and the dying
declaration was written in the language of the witness himself.
There is practically no Cross Examination of this witness. The
only thing that was brought out was that he did not obtain the
endorsement certificatiOQ by the Doctor that they were in a
H
SUNDER SINGH v. STATE OF UTTARANCHAL 949
[VS. SIRPURKAR, J.]
position to make a statement. We have seen the dying A
declaration itself. It is true that the dying declaration is not
endorsed by the doctor but for the same comments for dying
declaration of Vimla Devi (PW-1) we would accept the dying
declaration of Prem Singh which would become substantive
evidence. s
16. In his dying declaration, Prem Singh had specifically
alleged that while he along with other members of his family
like father, mother, sister-in-law, elder brother and younger
sister were having food, at that time accused Sunder Singh
who was his uncle was coming towards his house with a torch C
and he was carrying a jerry can (named as 'gallons' by witness)
and he poured the petrol and closed the door. After throwing
the torch he closed the door resulting in the room catching fire.
He then said that his elder brother Balwant Singh pushed the
door though his body had also caught fire. He then asserted D
that Sunder Singh cut him with some sharp weapon. He also
explains that they could not go out because the whole room
had caught fire. The witness further stated in his dying
declaration that the other villagers came. However, he could
not recognize them as he had suffered burn injuries. He was E
specific that Sunder Singh alone had come to set the house
on fire. This declaration was recorded on 1.7.1989 at 3.45
p.m. as is recorded in the dying declaration itself. The dying
declaration bears the thumb impression on both the pages.
When this dying declaration is considered in the light of the F
evidence of Narender Singh Patel (PW-9), it is established
that the dying declaration was not only voluntary but it was the
correct depiction of the facts of which took place. There is no
reason for us to reject the dying declaration again solely for
the reason that there was no endorsement of the doctor on the G
dying declaration regarding the fit condition of the injured to
make the statement. We have already, while discussing the
dying declaration of Vim la Devi (PW-1 }, held that the
Magistrate, Na.render Singh Patel (PW-9) had specifically
asserted that he had got himself satisfied by asking the doctor H
950 SUPREME COURT REPORTS [2010] 11 S.C.R.
A that the injured witness were in a fit mental and physical
condition to make a statement.
17. Hyat Singh did not specifically name Vimla Devi (PW-
1) having made oral dying declaration to him but asserted that
the injured victims had told him about Sunder Singh's
8 involvement. We would use this circumstance only as
corroboration to Vimla Devi's evidence. It is true that Vimla
Devi (PW-1) had specifically not stated that she made a
statement to Hyat Singh. However, we are of the clear opinion
that the evidence of Vimla Devi (PW-1) as corroborated by
C dying declaration (Exhibit Ka-5) was totally acceptable and
was rightly relied upon by the Trial and the appellate Court.
18. There can be no dispute that the dying declaration
can be made a basis of conviction. There again can be no
o dispute that for basing the conviction on the dying declaration,
the dying declaration must pass all the tests of voluntariness,
the fit condition of mind of the maker of the dying declaration
and the witness not being influenced by any other factors and
the truthfulness of the declaration. The law is settled by this
E Court in the decision of Laxman Vs. State of Maharashtra
[2002 (6) SCC 710]. There, of course, the Court has discussed
implication of the doctor's statement. The Court has further
considered the subject in Shanmugham @ Ku/andaivelu v.
State of Tamil Nadu [(2002) 10 SCC 4] as also in P. V.
F Radhakrishnan v. State of Kamataka [(2003) 6 SCC 443].
We hasten to add that we do not want to understate the
importance of the evidence of doctors. However, there could
be cases where though there is no certification by the doctor,
still the dying declaration can be accepted and in our opinion
present is such a case. In Laxman's case (cited supra), the
G court had observed in paragraph 3:
"normally, therefore, the Court in order to satisfy whether
the deceased was in a fit mental condition to make the
dying declaration look up to the medical opinion. But where
H
SUNDER SINGH v. STATE OF UTTARANCHAL 951
(V.S. SIRPURKAR, J.]
the eye witnesses state that the deceased was in a fit and A
conscious state to make the declaration, the medical
opinion will not prevail, nor can it be said that since there
is no certification of the doctor as to the fitness of the mind
of the declarant, the dying declaration is not acceptable."
B
19. This decision was by the Constitution Bench of this
Court and has taken stock of all the earlier decisions. It has
been through out followed by this Court in the later cases.
After examining all the circumstances, particularly, the evidence
of the Magistrate, we are of the clear opinion that the dying C
declarations of Vimla Devi and Prem Singh do pass the test
of credibility. Of course, the dying declaration of Vimla Devi
cannot be substantive evidence and it can only be corroborative
evidence of oral testimony since she survived. However, the
evidence of Prem Singh does become substantive evidence
and in our opinion, wholly reliable. We, therefore, hold that the D
Trial Court and the appellate Court have committed no error in
relying on that dying declaration.
20. There is immediate disclosure of the name of the
accused in the FIR. This report was in the same night at 3.30 E
a.m. where it is specifically stated that at 10 O'clock Sunder
Singh had set the house on fire when the family members of
Prem Singh were having food. It is also asserted therein that
even Balwant Singh's neck was cut by him. The FIR is not
substantive evidence. However, it corroborates the assertion F
of Kheem Singh that Hyat Singh came on the spot and had
enquired into the matter. Therefore, the name of the accused
was reported almost immediately without any waste of time.
21. Chanar Singh (PW-2) asserted that he was told by
injured Pratap Singh that Sunder Singh had set the house on G
fire and he had injured Balwant Singh . This assertion on the
part of Chanar Singh has not been challenged in the cross-
examination at all. In fact Chanar Singh is the brother of the
accused. It is true that in cross-examination he admitted that
H
952 SUPREME COURT REPORTS [2010] 11 S.C.R.
A he had not seen Sunder Singh setting the house on fire nor
did he see him assaulting Balwant Singh with a sword. Even
this witness was told by Vimla Devi that it was Sunder Singh
who had set the house on fire. His evidence, therefore,
corroborates the evidence of Vimla Devi. It is relevant as a
s previous statement made to other witness and·usable as such.
Similarly, Rewadhar (PW-3) also asserted that Pratap Singh
had told him that when they were having their food at that time
Sunder Singh had poured the petrol and had put the house on
fire. Even this assertion in the examination-in-chief was not
c challenged in the cross-examination. The only challenge in the
cross examination was that he had himself not seen the
incident. The evidence of this witness also thus went
unchallenged. Very unfortunately, though the Panchnamas on
which these two witnesses have put their signatures were put
to the accused. However, this fact of oral dying declaration by
0
Pratap Singh to both of them was not put to the accused. It is
really a matter of concern that even the trial Judge did not
frame the question in Section 313 Cr.P.C. examination
specifically putting the names of these two witnesses. Thereby
a very important circumstance is lost. We have not allowed
E ourselves to be influenced by these two oral dying declarations.
However, we are , nentioning these facts only with a view to
caution the Trial Courts tc be extremely careful about the
questions to be put to the accused persons in examination
under Section 313 Cr.P.C. Record must show that meticulous
F care is taken to put all the incriminating circumstances to the
accused. It is found that the Trial Courts sometimes are
extremely casual about this aspect and fail to put all the
incriminating circumstances to the accused. We would expect
the Trial Courts to be extremely careful in this behalf. It is only
G with this idea that we are mentioning these facts.
22. However, the fact remains that even ignoring these
oral dying declaration allegedly made by Pratap Singh to the
two witnesses, namely, Chanar Singh (PW- 3) and Rewadhar
H (PW-4) the prosecution still is successful in proving its case
SUNDER SINGH v. STATE OF UTTARANCHAL 953
[V.S. SIRPURKAR, J.]
on the basis of the oral evidence of Vimla Devi and the dying A
declaration by Prem Singh.
23. The evidence of four doctors was led. It is obvious
from the evidence that only two victims when they were alive,
namely, Vimla Devi (PW-1) and Prem Singh were examined B
by Dr. K.C. Joshi (PW-12). The other doctors were namely Dr.
N.D. Punetha (PW-6) who conducted the post-mortem on
Balwant Singh's dead body. He has specifically proved the
injury No.1 on the neck of Balwant Singh which was bone
deep. He also described that all the body was burnt. He also
confirmed the opinion that the injury No.1 on the neck could
c
have been possible by a sharp weapon like a sword. He also
conducted the post-mortem of Smt. Nandi Devi who had died
almost immediately after she was burnt. He opined that she
had died of the burn injuries. Both these post-mortem reports
have been proved as Exhibits Ka-2 and Ka-3 respectively. He D
also conducted the post-mortem of Pratap Singh on 02.07.1989
and opined that the deceased had died on account of the
shock of the burn injuries. He proved the post-mortem report
at Exhibit Ka-5. Dr.H.G.S. Manral was examined as PW-10.
He conducted the post-mortem of body of Prem Singh. He E
opined that Prem Singh had suffered 90% of second and third
degree burns. The whole body was blackened and the black
soots were found in the respiratory track up to his lungs. He
also opined that Prem Singh had died on account of the burn
injuries and shock. Dr Nanda Ballabh Sharma was examined F
as PW-11. He conducted the post-mortem on 13.10.1989 on
the body of Kamla. Thus, Kamla had survived for almost three
· and a half months. However, ultimately she succumbed on
12.10.1989. According to this witness, the deceased had died
after substantially long period after she was burnt on account G
of the shock, paucity of blood and on account of extensive
weakness on account of burns. Thus, it is clear that all the
deceased persons had died on account of the burn injuries.
Dr. K.C. Joshi who was examined as PW-12, had medially
examined Vimla Devi and Prem Singh on 1.7.1989. He had H
954 SUPREME COURT REPORTS [2010] 11 S.C.R.
A described as many as five burn injuries on the body of Vimla
Devi. He had also examined Kamla Devi and noted her burn
injuries as also Prem Singh for his burn injuries. All the three
witnesses were alive when he examined them. He proved the
injury reports at Ka-9, Ka-10 and Ka-11, respectively. Nothing
B has been brought in the cross-examination of these doctors
excepting the suggestion to practically all of them that if there
was an accidental fall of a can containing oil or petrol in the
hearth, there could be a possibility of the witnesses receiving
burn injuries. We have already pointed out that such
c possibility was merely an imagination and there is no material
whatsoever to see any such possibility. This is all the more
true considering that Balwant Singh was given a blow by a
sword resulting in his instantaneous death. The defence thus
could not get any advantage from the medical evidence.
D 24. This takes us to the quality of investigation. We must
say that the investigation in this case was not up to the mark.
In the distant hilly areas in the State of Uttarakhand, the
investigation is conducted by village Police through a Patwari
who is the lowest officer in the revenue department. Much
E more could have been done in this case. For example, the
investigation officer could have recorded the dying declaration
of Pratap Singh, Nandi Devi, Kamla, Vimla Devi and Prem
Singh. They were alive when the investigating officer allegedly
reached the spot as per his own evidence. That was not done.
F We also fail to understand as to why K.R. Tamta (PW-14), the
investigating officer did not even bother to get the dying
declaration of Kamla recorded. Even Hyat Singh (PW-13) could
have got the said dying declaration recorded. Even that was
not done. We again fail to understand as to why the FSL
G report was not obtained and filed. The trial was started only
after the arrest of the accused after 12 years. All this suggests
that the investigation was conducted in a very casual and
careless manner. Same is the story of prosecution. We have
already commented on proper questions not being put to the
H accused. It is obvious that the prosecuting agency did not
SUNDER SINGH v. STATE OF UTTARANCHAL 955
[V.S. SIRPURKAR, J.]
even l::lother to look into the questions before they were asked A
to the accused in his Section 313 Cr.P.C. examination. Merely
because this heinous offence took place in the remote corner
of District Bageshwar which - at the time when the offence
took place was Almora District - it did not mean that the
investigating agency could do some slipshod investigation and B
thereafter the prosecution could be allowed to be equally casual
as it appears to have been in conducting the prosecution. This
also speaks about the duty of the Trial Court Judge who cannot
be a mere spectator to what goes on in the name of the trial.
The Trial Judge has to control the trial by active application of c
mind. A time has come when the village police system
prevalent in the State of Uttaranchal in respect of distant areas
would have to be changed and the distant villagers would have
to be given the protection and services of the regular police.
It is really strange that the four Districts which are in the plains D
have had advantage of the police system while in the remaining
Districts, the distant part of those Districts should be deprived
of a police system. Such deprivation undoubtedly results in
affecting the law and order situation, the detection of crimes
and the protection of the poor villagers. In fact effective policing E
is the need of the whole society, urban as also rural. However,
all these factors have not prejudiced the accused. Even with
these factors, the prosecution has fully proved the heinous
offence committed by him. This Court has time and again held
that incompetent investigation should not result in the accu"sed
getting any unfair advantage. We reiterate the same principle. F
25. Considering overall situation the evidence led by the
prosecution through Vimla Devi which has been corroborated
by her dying declaration as also the dying declaration (Exhibit
Ka-6) of Prem Singh and the other circumstances proved on G
record through the evidence of Panchas and the Panchnamas.
It must be said that it was the accused and accused alone
whose guilt has been proved beyond all reasonable doubts.
We, therefore, endorse the judgments of the Trial Court and
the High Court and confirm their findings on conviction. H.
956 SUPREME COURT REPORTS [2010] 11 S.C.R.
,,
A 26. This takes us to the sentencing part. Both the Trial
Court and the High Court have confirmed the death sentence.
It was urged by the learned Amicus Curiae that this could not
be .·the case which can be described as the rarest of rare
case. It was urged that long standing enmity has resulted in
B the accused committing this offence. It was also urged that
merely because the accused set the house on fire, it cannot
be said that it was his intention to commit murder of all inmates
as the accused might not have been able to foresee the horrible
results that were likely to follow from his act of setting the
c house on fire and, therefore, at the most it could be described
as indiscretion on the part of the accused. The learned Amicus
Curiae further urged that this incident had taken place in the
year 1989 and to send the accused to gallows after 21 years
of the incident would be inhuman. Further it was pointed out
that the first judgment of the Trial Court came in the year 2004
0
and for six years thereafter, the accused is under the shadow
of death and, therefore, it would not be proper to confirm his
death sentence.
27. As against this, the learned counsel appearing on
E behalf of the State pointed out that this act of burning the
house and as a result of roasting of six persons alive appears
to have been committed by the accused with cool mind and in
a cold blooded manner. The learned counsel was at pains to
point out that there was no immediate provocation by any of
F the deceased persons which could drive the accused to take
such a horrible step. Learned counsel pointed out that secondly,
the accused came with full preparation to eliminate as many
persons as possible as he had come with the sword and also
a pistol. The counsel invited our attention to the fact that the
G pistol was found lying in the courtyard which had two bullets.
He further pointed out that as many as three jerry cans were
also found in the same condition and it was obvious that the
accused had used the petrol to bathe the house with petrol.
Otherwise, the room which was 10 cubic long and 5 cubic
H wide could not be burnt so extensively. The learned counsel
SUNDER SINGH v. STATE OF UTTARANCHAL 957
[V.S. SIRPURKAR, J.]
further pointed out that thirdly, after pouring the petrol and A
setting the house on fire by a torch, the accused closed the
door which fact was proved by the evidence of Vimla Devi
which was corroborated by her dying declaration and also the
dying declaration of Prem Singh. According to the learned
counsel when the whole room was aflame, to close the door B
was a definite pointer towards the evil intention of the accused
who must have seen the six family members burning. As if all
this was not sufficient, according to the leaned counsel forthly,
as Balwant Singh was able to open the door and run out,
though he himself was in flames at that time, the accused c
almost beheaded him.
28. Our attention was invited to the injury No.1 proved in
the post-mortem report of Balwant Singh (Ka-2). The learned
counsel then urged that as a result of his assault Balwant
Singh died on the spot while the remaining five members of D
the same family were extensively burnt though Vimla Devi
miraculously escaped death though she had suffered 70 %
burns. The learned counsel further invited our attention to the
fact that all those who died had suffered extensive burns which
suggests the quantity of petrol used by the accused. According E
to the counsel, therefore, the quantity of petrol used from three
jerry cans was itself another definite pointer to the evil intention
of the accused. As regards the lapse of 21 years, the learned
Counsel pointed out that showing scant respect to law the
accused absconded and remained absconding for 12 years. F
Unfortunately, it has not come in the evidence of Hyat Singh or
K.R. Tamta as to how or in what manner the accused was
apprehended, nor has it been put to the accused in his
examination that he was absconding for 12 years. However,
the learned counsel further submitted that the accused was G
undoubtedly apprehended only when he was found to have
been arrested for offences under Sections 323, 504 and 506
IPC registered in police station Karnprayag. He was in
Pursadhi jail of Chamoli District. Learned counsel, therefore,
urged that it was because the accused himself remained H
958 SUPREME COURT REPORTS [2010] 11 S.C.R.
A absconding for good long almost 12 years, that the time of 21
years has elapsed. Learned counsel then pointed out that the
accused cannot take advantage of his own wrong of remaining
absconding for 12 years. Lastly, learned Counsel urged that
because of this cruel and inhuman act as many as six persons
B of the same family were burnt and five of them died resulting
in the family of Pratap Singh completely being wiped out
excepting for his daughter-in-law Vimla Devi who has to spend
rest of her life with extensive burn injuries. The learned
government pleader, therefore, urged that considering the
c balance-sheet of circumstances for and against the accused,
the Court should confirm the death sentence.
29. On these rival contentions, we would have to take
stock of few rulings of this Court.
D 30. The law is now well settled in the decision in Bachan
Singh Vs. State of Punjab [AIR 1980 SC 898], where it was
held that the death penalty can be inflicted only in the gravest
of the grave cases. It was also held that such death penalty
can be imposed only when the life imprisonment appears to
E be inadequate punishment. Again it was cautioned that while
imposing the death sentence, there must be balance between
circumstances regarding the accused and the mitigating
circumstances and that there has to be overall consideration
of the circumstances regarding the accused as also the
F offence. Some aggravating circumstances were also culled
out, they being:-
(a) where the murder has been committed after
previous planning and involves extreme brutality; or
G (b) where the murder involves exceptional depravity.
The mitigating circumstances which were mentioned
in that judgment were:-
(a) That the offence was committed under the influence
H
SUNDER SINGH v. STATE OF UTTARANCHAL 959
[V.S. SIRPURKAR, J.]
of extreme mental or emotional disturbance; A
(b) The age of the accused. If the accused is young or
old, he shall not be sentenced to death;
(c) The probability that the accused would not commit
8
criminal acts of violence as would constitute a
continuing threat to society;
(d) The probability that the accused can be reformed
and rehabilitated. The State shall by evidence prove
that the accused does not satisfy the conditions (c) c
and (d) above;
(e) That in the facts and circumstances of the case, the
accused believed that he was morally justified in
committing the offence; D
(f) That the accused acted under the duress or
domination of another person; and
(g) That the condition of the accused showed that he
was mentally defective and that the said defect E
impaired his capacity to appreciate the criminality
of his conduct.
The law was further settled in the decision in Machhi
Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957), where
F
this Court ins_isted upon the mitigating circumstances being
balanced against the aggravating circumstances. The
aggravating circumstances were described as under:-
(a) When the murder is in extremely brutal manner so
as to arouse intense and extreme indignation of the G
community.
(b) When the murder of a large number of persons of
a particular caste, community, or locality is
committed.
H
960 SUPREME COURT REPORTS [2010] 11 S.C.R.
A (c) When the murder of an innocent child, a helpless
woman is committed.
The matter was further considered in Devender Pal Singh
Vs. State of NCT of Delhi [AIR 2002 SC 1661], wherein, after
examining both the aforementioned cases, it was held that
8
when a murder is committed in an extremely brutal manner, or
for a motive which suggests total depravity and meanness or
where the murder is by hired assassin for money or reward,
or a cold blooded murder for gains, the death sentence is
justified. Similar such observation was made even in the
C decision in Atbir Vs. Govt. of NCT of Delhi [JT 2010 (8) SC
372]. Relying on all these cases, this Court, in Criminal Appeal
Nos. 127-130 of 2008 (C. Muniappan & Ors. Vs. State of
Tamil Nadu) decided on 30.8.2010, confirmed the death
sentence. That was a case where the accused persons, while
D demonstrating against the arrest of their leader, started
damaging public transport vehicles. Some girl students of a
University were travelling in a bus. The three accused persons
attacked the bus and sprinkled petrol in the bus full of girl and
boy students and set it on fire with the students still inside the
E bus. As a result, the inmates started escaping; however, three
of the girls could not escape and were roasted alive. The
unprovoked attack on the bus and the burning of the bus by
sprinkling petrol on the bus, and the death of three students as
a result of such burning was viewed by this Court as a barbaric
F and inhuman act of the highest degree. The offence was viewed
as brutal, diabolical, grotesque and cruel, shocking the
collective conscience of society. It was on that account that the
death sentence was confirmed. Several comments have also
been made by this Court on the inaction shown by the general
G public and the police who remained passive and did not try to
help the unfortunate victims.
31. In Ravji Alias Ram Chandra Vs. State of Rajasthan
[1996 (2) SCC 175], relying on the decision in Dhananjoy
Chatterjee Vs. State of West Bengal [1994 (2) SCC 220],
H
SUNDER SINGH v. STATE OF UTTARANCHAL 961
[V.S. SIRPURKAR, J.]
this Court confirmed the death sentence, where the murder by A
the accused of his wife in the advanced stage of pregnancy
and of his three minor children was viewed as rarest of the
rare cases. The Court observed that the accused has not even
spared his mother, who very rightly tried to prevent him, and
the accused assaulted her with the same axe with which he B
killed his wife and minor children. The accused was described
as blood-thirsty demon. In Dhananjoy Chatterjee Vs. State of
West Bengal (cited supra), the murder was of a helpless girl
who was raped and then murdered. That was viewed as the
rarest of the rare cases. In State of UP. Vs. Dharmendra c
Singh & Anr. [1999 (8) SCC 325], it was held that the High
Court was not right in avoiding the death sentence on the
ground that the convict was languishing in death cell for m,ore
than 3 years. In that case, the accused had committed murder .
of 5 persons including an old man of 75 years, a woman aged 0 "
32 years, two boys aged 12 years and a girl aged 15 years
when they were asleep only to wreak vengeance on the part
of the accused. The High Court considered the act on the part
of the accused in denuding the lower part of the body of the
girl. This Court observed that the High Court had misdirected
itself in refusing to confirm the death sentence on account of E
the so-called 3 years of languishing in death cell. For this
proposition, the Court relied or; ,he decision in Triveniben Vs.
State of Gujarat [1988 (4) SCC 574], where it was held that
the delay in executing the sentence was of no consequence.
F
32. In Atbir Vs. Govt. of NCT of Delhi (cited supra), which
was a case dependant upon a dying declaration, the allegation
was that the accused had stabbed all the three persons of a
family so that he and his brother could enjoy the entire property
and money. The repeated stabbing of the deceased was G
viewed as the act for which the accused could be legitimately
awarded death sentence. The incident therein had occurred
on 22.1.1996 while the Sessions Judge had awarded the death
sentence on 27.9.2004. The High Court had confirmed the
H
962 SUPREME COURT REPORTS [2010] 11 S.C.R.
A death sentence on 13.1.2006 while this Court affirmed this
sentence by its judgment dated 9.8.2010. This Court, after
taking the stock of the aggravating circumstances and
mitigating circumstances, as pointed out in Bachan Singh Vs.
State of Punjab (cited supra) and Machhi Singh & Ors. Vs.
B State of Punjab (cited supra), came to the conclusion that
though Atbir was a young person of 25 years of age and had
already spent 10 years in jail, that was not a mitigating
circumstance in his favour. The three murders were held to be
extremely brutal and diabolical, committed with deliberate
c design in order to inherit the entire property of Jaswant Singh
without waiting for his death. In Sushi/ Murmu Vs. State of
Jharkhand [AIR 2004 SC 394], which was a case of human
sacrifice of a 9 years old child, this Court found the accused
guilty on the basis of circumstantial evidence. While culling out
D the aggravating circumstances, this Court named five
circumstances on the basis of the earlier case law in Machhi
Singh & Ors. Vs. State of Punjab (cited supra), Bachan Singh
Vs. State of Punjab (cited supra) and Ediga Anamma Vs.
State of A.P. [AIR 1974 SC 799]. Two of the said circumstances
are as follows:-
E
1. When the murder is committed in an extremely
brutal, grotesque, diabolical, revolting or dastardly
manner so as to arouse intense and extreme
indignation of the community.
F
2. When the crime is enormous in proportion. For
instance when multiple murders, say of all or almost
all the members of a family or a large number of
persons of a particular caste, community or locality,
are committed.
G
In this case, the Court recorded that the murder was a
dastardly murder by sacrificing a hapless and helpless child of
another for personal gain and to promote his fortunes by
pretending to appease the deity or was a brutal act which is
H
SUNDER SINGH v. STATE OF UTTARANCHAL 963
[V.S. SIRPURKAR, J.]
amplified by the grotesque and revolting manner in which it A
was committed. This case was even relied upon by the High
Court while confirming the death sentence.
33. In another decision in Gurdev Singh & Anr. Vs. State
of Punjab with Piara Singh & Anr. Vs. State of Punjab [AIR
8
2003 SC 4187], this Court specifically held in Para 19 that
there could be no fixed or rigid formula or standard for invoking
extreme penalty of death sentence. This was a case where
this Court took notice of the decision in Rajendra Prasad Vs.
State of Uttar Pradesh [1979 (3) SCC 646}, where this Court
had held that the focus had shifted from crime to criminal and C
the special reasons necessary for imposing death penalty must
relate not to the crime as such but to the criminal. The Court,
however, noted that this was overruled in Bachan Singh Vs.
State of Punjab (cited supra) later on. The Court also referred
to various cases like (i) A. Devendran Vs. State of Tamil D
Nadu [1997 (11) SCC 720], which was a case of triple murder,
where the Court had refused to pass the death sentence, (ii)
Kumudi Lal Vs. State of U.P. [1999 (4) SCC 108], which was
a case of rape and murder of a young girl aged 14 years and
where this Court had refused to confirm the death sentence on E
the ground that the death of the girl must not had been intended
r
by the accused, and (iii) Om akash Vs. State of Haryana
[1999 (3) SCC 19], which was a case where a BSF Jawan
had murdered as many as 7 persons. This was also a case
where the Court refused to confirm the death sentence on the F
ground that the bitterness in the mind of the accused had
increased to a boiling point and the agony suffered by the
accused and his family members at the hands of the other
party, and for not getting protection from the police officers
concerned and the total inaction on their part inspite of G
repeated written prayers, had goaded or compelled the
accused to take law in his own hands. Two other cases where
the death sentence was not confirmed were also referred to in
Gurdev Singh & Anr. Vs. State of Punjab with Piara Singh &
Anr. Vs. State of Punjab (cited supra). They were Mohd. H
964 SUPREME COURT REPORTS [2010] 11 S.C.R.
A Chaman Vs. State (NCT of Delhi) [2001 (2) SCC 28] and
Lehna Vs. State of Haryana [2002 (3) SCC 76]. However,
this Court then took notice of the facts and noted that the
accused in that case had fired at the marriage party as he
knew that there was going to be a marriage on the next day
B in the house of the complainant. The accused had fired at the
time when the feast was going on and 13 persons were killed
on the spot and 8 persons were seriously injured. Out of all
those 13 persons, one was 7 years' child. This Court, under
the circumstances, refused to convert the death sentence into
c the sentence for life.
34. There are three other cases which we must mention.
In Haru Ghosh Vs. State of West Bengal [2009 (15) SCC
551], where one of us was a party (V.S. Sirpurkar, J.), there
was a murder of a helpless lady and a child by a person who
D was already suffering death sentence. However, that act was
not found to be a pre-meditated act. It was found that the
accused had acted on account of the previous enmity and
since he thought that his livelihood was being attacked by the
husband of the deceased, though in an incorrect manner. It
E was found that he had not come armed to the scene of offence.
It was also found that though he was not justified in eking out
his livelihood by selling liquor, but the fact of the matter was
that he and his family was surviving only on that, and the effort
on the part of the husband of the deceased to stop the activity
F of the accused was sufficient to nurture deep hatred in his
mind on account of which the accused acted. Such is not the
case here. In Oilip Premnarayan Tiwari & Anr. Vs. State of
Maharashtra etc. [2010 (1) sec 775], again where one of us
(V.S. Sirpurkar, J.) was a party, this Court refused to confirm
G the death sentence, where the accused was guilty of committing
multiple murders (4 in number). However, considering the fact
that the sister of the accused was married to the deceased
out of a love affair, which marriage was not approved at all by
the family of the accused being an inter-caste marriage and
H
SUNDER SINGH v. STATE OF UTTARANCHAL 965
[V.S. SIRPURKAR, J.]
further they being neighbours and the accused having to suffer A
the ignominy because of the so-called marriage on day to day
'
basis, this._Court took the view that this was not a case where
the death sentence was to be awarded. The Court considered
the psychology of the accused, the taunts that he had suffered
on account of his sister's marriage with a person of different s
community and further the fact that the situation had gone out
of his hand as his sister was on the family way. The Court,
therefore, viewed that this could not be the rarest of the rare
cases. Lastly, in Swamy Shraddananda@ Murali Manohar
Mishra Vs. State of Karnataka [AIR 2008 SC 3040], though c
there was one of the most cold-blooded murder for gains, the
Court recorded that considering the absolute irrevocability of
the death penalty, sentencing accused to death would not be
proper. We do not find anything in this decision, which will be
helpful to the accused in the present matter.
D
35. Considering all these cases, on the backdrop of the
facts, which have taken place and provided in this case, it
must be said that this is one of the rarest of the rare cases.
Here is a case where the whole family is wiped out. Five
persons have lost their life while the sixth person, a helpless E
lady, who has now been left to be the only member of the
family, has to live her life with 70% burn injuries. The murder
was committed in a cruel, grotesque and diabolical manner.
When all the members of the family were having their food, the
accused poured petrol in the room and set it to fire and went F
to the extent of closing the door also. He closed the door as
established by Vim la Devi (PW-1) and Prem Singh in the
dying declaration. This was the most fouled act, by which the
accused actually intended to burn all the persons inside the
room and precisely that had happened. Barring Vimla Devi G
(PW-1 ), everybody in that room was burnt with the exception
of Balwant Singh, who somehow, was able to open the room
and come out. Even he was not spared and almost beheaded
by the accused. It was clear that the accused had done this
with pre-meditated and cold-blooded mind, as he had taken H
966 SUPREME COURT REPORTS [2010] 11 S.C.R.
A the trouble of carrying petrol to his own cousin's house. As if
all this was not sufficient, he was also carrying a sword, and
probably prepared himself to fire on the complainant party, as
a pistol with two bullets in it was also found on the spot. The
accused shown extreme depravity of mind in causing a sword
B blow on the neck of Balwant Singh, who himself was burnt and
was trying to escape. A murder by burning, by itself, would be
a very cruel act. The agony caused to the dying witnesses
because of their burn injuries would be enormous. Again, when
it is seen that there was no immediate provocation to the
C accused and all this only was on account of the enmity going
on in respect of the family lands, the enormousness of the
crime is increased by many folds. The accused showed scant
respect for the law by remaining absconding for about 12
years and only because of that he could not be brought to
books. It is only his accidental arrest and being lodged in
0
other jail that the prosecuting agency was able to prosecute
him. Out of the five persons who lost their life, Kamla was
barely 16 years old while Prem Singh was 19 years old only.
Their life was nipped in bud. Both the ladies who lost their life,
as also the other three persons who lost their life were without
E any arms and were helpless. They could not have even saved
themselves and did succumb to the burn injuries. The balance
sheet of the aggravating circumstances thus exceeds the
mitigating circumstances. In fact, there is no mitigating
circumstance in this case. The age is not on the side of the
F accused. We cannot appreciate the argument that it was only
a rash act on the part of the accused without an intention to
commit the murder. That does not appear to be the case at
all. Pouring of the petrol extensively would rule out the intention
on the part of the accused only to burn the house. Again, his
G act of closing the door after setting the house to fire, would
speak completely against him. Insofar as the other
circumstance of the accused remaining under the shadow of
death sentence right from 2004 is concerned, we do not think
that that circumstance, by itself, is sufficient to mitigate his
H horrible crime as the time factor is identical with the case of
SUNDER SINGH v. STATE OF UTTARANCHAL 967
[VS. SIRPURKAR, J.]
Atbir Vs. Govt. of NCT of Delhi (cited supra). A
36. Considering the overall circumstances, we are of the
opinion that the death sentence was rightly awarded by the
Trial Court and was rightly confirmed by the High Court We
find no reasons to interfere in this appeal. The appeal is
B
dismissed.
D.G Appeal dismissed.
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