Holding

The Court upheld convictions under IPC sections 302 and 307, struck down the death‑penalty enhancement for lack of a hearing, declared the Arms‑Act charge superfluous, and acquitted Mohd. Anis due to unreliable identification.

Summary

The case involved two accused, Surendra Singh Rautela and Mohd. Anis, who were convicted for murder and related offences arising from a daylight shooting motivated by a ransom demand. The trial court relied on the testimony of a sole injured eyewitness, Ranjan Singh, which was corroborated by his relatives and medical evidence, and the High Court enhanced Rautela's life sentence to death without granting a hearing. The Supreme Court held that the eyewitness testimony was reliable, the motive was proved, and the identification of Rautela was not improbable, but the enhancement of the sentence without a hearing was invalid. It also clarified that offences under the IPC and the Arms Act arising from the same act can be tried together, rendering the conviction under Section 27(3) of the Arms Act superfluous. Consequently, Rautela's death sentence was set aside and his life sentence restored, while Anis was acquitted of all charges due to unreliable identification.

Issues considered

The reliability of the sole eye‑witness testimony despite the hostile witness
Whether the prosecution proved the ransom‑demand motive
The adequacy of identification of Surendra Singh Rautela
The adequacy of identification of Mohd. Anis
The legality of enhancing a sentence to death under Section 377 without a hearing
The permissibility of simultaneous trial for offences under the IPC and the Arms Act under Section 220(3) CrPC
The necessity of the conviction under Section 27(3) of the Arms Act

Legislation cited

Arms Act, 1959s. 27(1), s. 27(3)
Code of Criminal Procedure, 1973s. 220(1), s. 220(3), s. 377
Indian Penal Code, 1860s. 302, s. 307, s. 34

Subjects

murderattempt to murdereyewitness identificationdeath penaltysentence enhancementrevisional jurisdictionsimultaneous trialArms ActCriminal Procedure Coderansom motive

Judgment

A SURENDRA SINGH RAUTELA @ SURENDRA SINGH BENGALI
v.
STATE OF BIHAR (NOW STATE OF JHARKAHAND)

NOVEMBER 27, 2001

B [M.B. SHAH AND B.N. AGRAWAL, JJ.]

\,_
Penal Code, 1860/Arms Act, !959-Sections 302 & 307/Section 271( I)
and (3 )-Conviction and senetence of accused-Corroboration of the testi-
mony of the sole eye witnesses-Incident taking place in broad day light-No·
C improbability in identification of accused-On basis of such evidence convic-
tion and sentence of accused under sections 302 and 307 upheld.

Criminal trial:

Testimony ~f sole eye witness-Reliability of-Corroborated by his rela-
D tive and also medical evidence-Held, testimony of such eye witness cannot be
rejected mainly because another eye witness had not supported prosecution
case and was declared hostile.

Identification ~f the other accused-Reliability of-From the statement
of the informant in the FIR that he could not identify accused even by face-
E I
Such identification of the accused in the test identification parade becomes
farce and his identification in the court cannot be relied on.

Code of Criminal Procedure, 1973:

F Section 377-Appeal by the State Government-Enhancement of sen-
tence-From life imprisonment to death penalty-ls justified only when oppor-
tunity of hearing given.

Section 220(3)--Simultaneous prosecution.for two offences-When act
of an accused in same transactions-Constitutes o.ffences under the Penal
G Code as well as the Arms Act-Trial for each ~f such ~[fences is permissible in
law.

According to the prosecntion, informant alongwith his uncle and
their bodyguards were travelling in~ car. Appellant 'S' sitting on the rear
H seat of the motor cycle came from behind at the right side of the car and
340
SURENDRA SINGH RAUTELA v. STATE 341
fired from the stengun and appellant 'MA' sitting on the rear seat of the A
scooter also fired at the right side of the car. As a result informant got
injured while his uncle died. First Information Report was registered.

. Motive alleged for the occurrence was that prior to the incident appellant
'S' had demanded ransom on two or three occasions from the informant
which was refused. Magistrate took congizance and committed the ac-
B
cused persons to Sessions Court for trial. Trial Court convicted and sen·
tenced the appellants to life imprisonment. It also convicted and sentenced
appellant 'S' to death penalty and appellant 'MA' to imprisonment under
the Arms Act. Apppellant challenged their conviction and the Respondent·
State filed an appeal for enhancement of sentence awarded to appellant
'MA'. High Court dismissed the appeal filed by appellant 'MA' and the C
Respondent-State and also set aside the conviction and sentence of Appel-
lant 'S' under Section 27(3) of the Arms Act. It upheld the conviction and
sentence of appellant 'S' under Section 307 of the Code and also upheld his
conviction under S. 302 of the Code but awarded death penalty. Hence the
present appeals. D

Disposing of the appeals, the Court

HELD : 1.1. It cannot be said that reliance could not be placed upon
the testimony of the informant as prosecution case has not been supported
by another eye witness who turned hostile since the informant is an injured E
person whose evidence is corroborated by his father and his brother and
the medical evidence. (346-A; BJ

1.2. Father of the informant stated that two or three times informant
received telephone calls in his presence from appellant 'S' demanding F
ransom. He further stated that he also received a telephone call from
appellant 'S' demanding ransom. Even the brother of the informant stated
that the cause of incidence was demand of ransom from the informant by
appellant 'S' which was not met. Therefore, the submission that the pros-
ecution failed to prove the motive disclosed in the first information report
as no evidence has been lead to prove the same is to be rejected.(346-C-E] G

1.3. Informant stated in his evidence that five to six days before the
incident he was introduced to appellant 'S' by one of their bodyguards in a
hotel where they had gone for taking snacks. Therefore, since the incident
had taken place in broad day light and as the appellant 'S' was introduced H
342 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A to the informant in the hotel prior to the occurrence even though once,
there is no improbability in identification of appellant 'S' by the inform-
ant. (346-F; GJ

1.4. The High Court was not justified in upholding convictions and
...
sentences awarded against appellant 'MA'. From the statement of the
B informant in the first information report, it would appear that he could
not identify appellant 'MA' even by face and for the first time in the
Sessions Court, he identified appellant 'MA'. Therefore, the identification
of the appellant 'MA' by the informant in the test idetification parade
becomes farce and no reliance can be placed upon his identification in
C Court. (347-G; H; 348-A; BJ

2. It is well settled that the High Court, suo 1"0tu in exercise of
revisional jurisdiction can enhance the sentence of an accused awarded by
the trial court and the same is not affected merely because an appeal has
been provided under Section 377 of the Code for enhancement of sentence
D and no such appeal has been preferred. In the instant case, no opportunity
of hearing was given to the appellant 'S' again! the enhancement of sen-
tence. Thus the High Court was justified in upholding conviction of appel-
lant 'S' under Sections 302 and 307 of the Penal Code but was not justified
in enhancing the sentence of life imprisonment awarded under Section 302
E of the Penal Code into death penalty. (347-A; B; D; El

Nadir Khan v. The State (Delhi Administration), AIR (1976) SC 2205
and Eknath Shankarrao Mukkawar v. State of Maharashtra, AIR (1977) SC
1177, referred to.

F Jayaram Vithabo and Anr. v. The State of Bombay, AIR (1956) SC 146
and Bachan Singh and Ors. v. State of Punjab, AIR {1980) SC 267, relied on.

3. The act of firing by appellant 'S' at the victims constitutes offences
under Section 307 of the Penal Code for firing at the informant and under
Section 302 of the Penal Code for firing at the deceased alongwith offences
G punishable under Section 27(3) of the Arms Act. In view of the specific
provisions engrafted under Section 220(3) Cr. P.C. that if act or acts of an
accused in the same transaction constitute more than one offence under
different laws, the person accused of them may be charged with and tried
at one trial for each of such offence, it was not justified in holding that it
H was not permissible to try appellant 'S' simultaneously for offences under
SURENDRA SINGHRAUTELA v. STATE [AGRAWAL, J.] 343
Section 302 of the Penal Code as well as Section 27(3) of the Arms Act and A
the charge under Section 27(3) of the Arms Act was totally superfluons.
[348-G-H; 349-A; BJ

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 628-
629 of 2001.
B
Fro~ the Judgment and Order dated 18.12.2000 of the Rajasthan High
Court in D.R.C. No. 1/2000 (R) with Cr!. A. No. 115 with Govt. A. No. 17 of
2000 (R).

WITH
c
Cr!. A. Nos. 630 and 1210-1211 of 2001.

P.S. Mishra, Ranjit Kumar and S.B. Sanyal, Himanshu Munshi, L.R.
Singh (NP), Amboj Kumar Sinha, Varun Goswami, Neeraj Shekhar, Ashok
Mathur, Rajesh Pathak, for the appearing parties.
D
The Judgment of the Court was delivered by

B.N. AGRAWAL, J. Leave granted in SLP (Crl.) Nos. 1964-65 of 2001.

These appeals by Special Leave have been preferred against the judgment
rendered by Jharkhand High Court. Surendra Singh Rautela @ Surendra Singh E
Bengali who is sole appellant in Criminal Appeal No. 628-29 of 2001 and
Mohd. Anis who is appellant in Criminal Appeal No. 630 of 2001 were tried
and convicted by the trial court. Surendra Singh Rautela was convicted under
Sections 302 and 307 of the Penal Code and sentenced to undergo rigorous
imprisonment for life on both count. He was further convicted under Section F
27(3) of the Arms Act and awarded death sentence and the matter was referred
to the High Court for confirmation of death sentence. Mohd. Anis was convicted
under Sections 302 and 307 read with Section 34 of the Penal Code and
sentenced to rigorous imprisonment for life and ten years respectively. He was
further convicted under Section 27(1) of the .Arms Act and sentenced to
G
undergo rigorous imprisonment for seven years. The sentences awarded against
the appellants were, however, ordered to run concurrenily. Both the accused
persons preferred separate appeals before the High Court challenging their
convictions whereas on behalf of the State, an appeal was filed for enhancement
of punishment of life imprisonment awarded against Mohd. Anis into death
penalty. The High Court by a common judgment disposed of the reference and H
344 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A the appeals. Appeal preferred by Mohd. Anis and State Government have been
dismissed whereby convictions and sentences awarded against this appellant
have been affirmed. So far appeal preferred by appellant Surendra Singh
Rautela is concerned, his conviction and sentence under Section 27(3) of the
Arms Act have been set aside. Conviction and sentence of this appellant under
Section 307 of the Penal Code have been upheld. So far as his conviction under
B
Section 302 of the Penal Code is concerned, the same has been confirmed but
he has been awarded death penalty.

Prosecution case, in short, is that on 4th April, 1966 at 10.00 a.m. the
informant Ranjan Singh (PW 7) along with his material uncle Dhananjay Singh
C and their bodyguards Shyam Bihari Singh (PW 4) and Karu Singh were going
in a Maruti Car to their site where contract work was going on. Ranjan Singh
(PW 7) was driving the Car and Dhananjay Singh was sitting by his side
whereas Shyam Bihar Singh (PW 4) and Karu Singh were sitting on the rear
seat of the Car. Shyam Bihari Singh was holding licenced revolver belonging
D to Ranjan Singh (PW 7). At about 10.20 a.m., when the Car reached near
Military Cho wk at Booty Road, one black coloured Yamaha motor cycle, on
the rear seat of which, appellant Surendra Singh Rautela was sitting, came from
behind at the right side of the Car and he started firing at Ranjan Singh (PW
7) by a stengun, who pushed himself behind. In the meantime, there was also
firing from the left side of the Car by a person who was on a scooter. There-
E
upon, the informant stopped the Car in front of the traffic post. As a result of
firing Ranjan Singh (PW 7) and his maternal uncle Dhananjay Singh got
injured. Thereafter, the accused person fled away. At that time, some police
personnel arrived there and brought Ranjan Singh (PW 7) and Dhananjay
Singh in injured condition to Rajendra Medical College Hospital where doctor
F declared Dhananjay Singh as brought dead. It was stated in the first information
report that Ranjan Singh (PW 7) could identify the person, who was driving
the motor cycle, on seeing him and other occupants of the Car could identify,
the person who was on the scooter and tired from the left side, on seeing him.
Motive for the occurrence as disclosed in the first information report was that
G prior to the incident appellant Surendra Singh Rautela had demanded Rs. 2
lakhs from Ranjan Singh (PW 7) as ransom on two or three occasions which
was refused by him which led to the present occurrence. Stating the aforesaid
facts, fardbayan of Ranjan Singh (PW 7) was recorded by the police in the
hospital on the same day at 11.30 a.m. on the basis of which the first informa-
H lion report was drawn up.
SURENDRA SINGH RAUTELA v. STATE [AGRAWAL, J.] 345
The police after registering the case took up investigation and on com- A
pletion thereof submitted charge sheet on receipt whereof, the magistrate took
co~nizance and committed the accused persons to the court of sessions to face
trial. During trial, the prosecution txamined fourteen witnesses in all and upon
the conclusion of trial, the trial court convicted and sentenced tl1e appellants
whereupon appeals were preferred and the same having been disposed of as
B
stated above, the present appeals by Special Leave filed on behalf of the
accused persons as well as the State are before us.

First, we proceed to consider ocular version of the occurrence supported
by the informant Ranjan Singh (PW 7). According to the first infonnation
report and the evidence of this witness, besides him and the deceased Dhananjay c
Singh, there were two other occupants of the car, who were eye witnesses,
namely, Shyam Bihari Singh (PW 4) and Karu Singh, out of whom, Karu Singh
died during trial, therefore, could not be examined and Shy am Bihari Singh was
examined as PW 4, but as he did not support the prosecution case, he was
declared hostile. Thus, Ranjan Singh (PW 7) remains the solitary eye witness.
This witness has received injuries by firearms on vital parts of the body as D
would appear from the evidence of Dr. V.K. Jain (PW 8), who examined this
witness on the date of occurrence itself in the hospital where he was admitted.
This witness has supported the prosecution case in all material particulars and
his evidence has been corroborated by Ram Pal Singh (PW 1), Om Prakash
(PW-3) and Kundan Prakash (PW 5), out of whom, PW 1 is his father and PW E
3 and PW 5 are his brothers, who were at their house at 11.00 a.m. in the
morning of the date of occurrence and rushed to the hospital immediately upon
receipt of infonnation before whom the informant disclosed about the occurrence
and name of appellant Surendra Singh Rautela. These witnesses were examined
by the police on the same day in the hospital. The medical evidence supports
F
the statement of Ranjan Singh (PW 7) as Dr. A.K. Choudhary (PW 6), who held
postmortem examination on the dead body of Dhananjay Singh on the date of
occurrence itself at 4.00 p.m. found injuries by firearm and opined that death
was caused between three to eighteen hours at the time of postmortem
examination which fits in with the prosecution case. That apart, the doctor
...
Ill
recovered a bullet from the dead body which was sent to the Forensic Science
Laboratory where it was examined by Ezaj Ahmad Khan (PW 12), Deputy
G

Director, Ranchi Regional Forensic Science Laboratory, who opined that bullet
was fired from 9 mm caliber and on the statement of accused Surendra Singh
Rautela made before the police, firearms including 9 mm. Caliber were recovered
by the Police Office, PW. 14, from steel almirah in the premises of ceramic H
346 SUPREME COURT REPORTS [200 I] SUPP. 5 S.C.R.
A factory on key being produced by the accused himself. Shri P.S. Mishra,
learned Senior Counsel appearing on behalf of the appellant Surendra Singh
Rautela submitted that no reliance should be placed upon the testimony of
Ranjan Singh (PW 7) as tl1e prosecution case has not been supported by another
eye witness Shyam Bihari Singh (PW 4), who has been declared hostile. In our
opinion, in view of the fact that Ranjan Singh (PW 7) is an injured person and
B
his evidence is corroborated by PWs I, 3 and 5 and the medical evidence, we
cannot discard his evidence merely because another eye witness Shyam Bihari
Singh (PW 4) has not supported the prosecution ca,e.

Shri Mishra submitted that the prosecution has failed to prove the motive
C which has been disclosed in the first information report at no evidence has been
led to prove the same. In our view, the submission has been made only to be
rejected as the motive has been proved by the three witnesses, namely, Ram
Pal Singh (PW I), Om Prakash (PW 3) and Kundan Prakash (PW 5). Ram Pal
Singh (PW I), who is father of the informant, stated that two or three times,
telephone calls were received in his presence from appellant Surendra Singh
D
Rautela demanding Rs. 2 lakhs as randsom from the informant. He has further
stated that on one occasion, he also received a telephonic call from appellant
Surendra Singh Rautela demanding ransom. Om Prakash (PW 3), who is
brother of the informant has stated that the cause of incident was that Surendra
Singh Rautela had demanded a sum of Rs. 2 lakhs from the informant Kundan
E Prakash (PW 5), who is another brother of the informant, stated that PW 7 told
him that cause of incident was refusal to meet the demand of ransom of
appellant Surendra Singh Rautela by the informant.

Learned counsel for the appellant Surendra Singh Rautela next submitted
that identification of this appellant by Ranjan Singh (PW 7) was highly improb-
F
able as this witness had seen him prior to the occurrence only once. This
witness has slated in his evidence that five to six days before the incident, he
was introduced to appellant Surendra Singh Rautel by Shyam Bihari Singh
(PW 4) in Ganga Ashram Hotel at Kachcheri Road where they had gone for

G
taking snacks. Since the incident had taken place in broad day light and as this
appellant was introduced to this witness in the hotel, we do not find any
imporbability in identification of appellant Surendra Singh Rautela by him.
.
'

Shri Mishra further submitteJ that the High Court was not justified in
enhancing the punishment awarded against this appellant from imprisonment
H for life to death sentence as no appeal under Section 377 of the Code of
SURENDRA SINGH RAUTELA v. STATE [AGRAWAL,!.] 347
Criminal Procedure, 1973 (hereinafter referred to as 'the Code') was filed by A
the State for enhancement of sentence. It has been further submiUed that no
opportunity of hearing was afforded to appellant Surendra Singh Rautela
against the enhancement of sentence. It is well settled that tl1e High Court, suo
motu in exercise of revisional jurisdiction, can enhance the sentence of an
accused awarded by the trial court and the same is not affected merely because
B
an appeal has been provided under Section 377 of the Code for enhancement
of sentence and no such appeal has been preferred. Reference in this connection
may be made to decisions of this Court in the cases of Nadir Khan v. The State
(Delhi Administration), AIR (1976) SC 2205 and Eknath Shankarrao Mukkawar
v. State of Maharashtra, AIR ( 1977) SC 1177. It has been also seUled by this
Court in the cases of Jayaram Vithoba and Anr. v. The State of Bombay, AIR C
(1956) SC 146 and Bachan Singh and Ors. v. State of Punjab, AIR (1980) SC
267 that the suo motu powers of enhancement under revisional jurisdiction can
be exercised only after giving opportunity of hearing to the accused. In the case
on hand, undisputedly, no opportunity of hearing was given to the appellant
Surendra Singh Rautela on the question of enhancement of sentence. D

Thus, in view of the foregoing discussions, we are of the view that the
High Court was quite justified in upholding conviction of appellant Surendra
Singh Rautela under Sections 302 and 307 of the Penal Code but was not
justified in enhancing the sentence of life imprisonment awarded under Section
302 of the Penal Code into death penalty. E

Turning now to the case of appellant Mohd. Anis, it may be stated that
his conviction is based upon the solitary evidence of his identification by
Ranjan Singh (PW 7) in Court as well as in the test identification parade. Even
according to prosecution case as disclosed in the first information report as well F
as the evidence of Ranjan Singh (PW 7), this appellant was sitting on rear seat
of the scooter which came from left side of the car and fired at the victims. In
the first information report, it has been specifically stated that the associates
of the informant who were in the Car could identify this appellant, who fired
from the scooter, on seeing him an<l the infonnant could identify the person
who was dnving the motor cycle on seeing him and on Nhich motor cycle G
accused Surendra Singh Rautela was sitting on the rear seat and fired at the
victims. From the aforesaid statement of the informant in the first information
report, it would appear that he could not identify appellant Mohd. Anis even
by face and for the first time in the Sessions Court, the witness identified him.
In view of the aforesaid statement in the first information report, the identifi- H
348 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A cation of the appellant Mohd. Anis by Ranjan Singh (PW 7) in the test iden-
tification parade becomes farce and no reliance can be placed upon his iden-
tification in Court: This being the position, we have no option but to hold that
the High Court was not justified in upholding convictions and sentences awarded
against this appellant.

B As far as appeal preferred on behalf of the State of Jharkhand is con-
cerned, the same was filed challenging the acquittal of appellant Surendra
Singh Rautela by the High Court from the charge under Section 27(3) of the
Arms Act, but Shri S.B. Sanyal, learned Senior Counsel appearing on behalf
of the State submitted that he is not in a position to challenge the order of
c acquittal on merit. It appears that in the leading judgment, the learned Judge
recorded acquittal of appellant Surendra Singh Rautela from the charge under
Section 27(3) of the Arms Act on merit but in the concurring judgment which
is by the learned Chief Justice, acquittal under the aforesaid Section has been
recorded on the ground that it was not permissible in law to try appellant
Surendra Singh Rautela simultaneously for the offences under Sections 302
D
of the Penal Code as well as 27(3) of the Arms Act. Learned counsel fonhe
State has objected to recording of acquittal in the concurring judgment on this
ground. It has been submitted that the learned Chief Justice was not justified
in holding that it was not permissible in law to try appellant Surendra Singh
Rautela simultaneously for the offences under Sections 302 of the Penal Code
E as well as 27(3) of the Arms Act as the same is contrary to the provisions of
Section 220 of the Code. Sub section ( 1) of Section 220 of the Code lays down
that if, in one series of acts so connected together as to form the same trans-
action, more offences than one are committed by the same person, he may be
charged with, and tried at one trial for, every such offence. Such section (3)
F of Section 220 of the Code lays down that if the acts alleged constitute an
offence falling within two or more separate definitions of any law in force for
the time being by which offences are defined or punished, the person accused
of them may be charged with, and tried at one trial for, each of such offences.
In the case on hand, the act of firing by appellant Surendra Singh Rautela at

G
the victims constitutes offences both under the Penal Code as well as Arms Act.
Under the Penal Code, two offences have been disclosed, one under Section
.
307 of the Penal Code for firing at Ranjan Singh (PW 7) and another under
Section 302 of the Penal Code for firing at Dhananjay Singh, deceased. The
act of firing at Dhananjay Singh, deceased, by appellant Surendra Singh Rautela
apart from constituting an offence punishable under Section 302 of the Penal
H Code does constitute an offence punishable under Section 27(3) of the Arms
SURENDRA SINGHRAUTELA v. STATE [AGRAWAL, J.] 349
Act. According to the provisions of Sub section (3) of Section 220 of the Code, A
if act or acts of an accused in the same transaction constitute more than one
offence under different laws, the person accused of them may be charged with
and tried at one trial for each of such offences. Thus, in view of the specific
provisions engrafted under sub-section (3) of Section 220 of the Code, we have
no option but to hold that the learned Chief Justice in the concurring judgment
B
was not justified in holding that it was not permissible to try appellant Surendra
Singh Rautela simultaneously for offences under Section 302 of the Penal Code
as well as Section 27(3) of the Arms Act and the charge under Section 27(3)
of the Arms Act was totally superfluous.

In the result, Criminal Appeal Nos. 628-29 of 2001 are allowed in part c
and sentence of death awarded against appellant Surendra Singh Rautela @
Surendra Singh Bengali by the High Court under Section 302 of the Penal
Code is set aside and the sentence of imprisonment for life awarded under that
Section by the trial Court is restored while upholding conviction of the
appellant under Section 302 of the Penal Code and his conviction and sen-
tence under Section 307 of the Penal Code. Criminal Appeal No. 630 of 2001 D
is allowed, convictions and sentences awarded against appellant Mohd. Anis
are set aside and he is acquitted of all the charges. Appellant Mohd. Anis is
directed to be released forthwith, if not required to be in custody in connection
with any other case. Criminal Appeals arising out of SLP (Cr!.) Nos. 1964-
65 of 2001 preferred by the State are disposed of with the observations E
aforementioned.

N.J. Appeals disposed of.