SURYAVIRversusSTATE OF HARYANA

                          [2022] 2 S.C.R. 1



                             SURYAVIR
                                  v.
                       STATE OF HARYANA
                  (Criminal Appeal No. 177 of 2022)
                        FEBRUARY 03, 2022
               [UDAY UMESH LALIT AND
         PAMIDIGHANTAM SRI NARASIMHA, JJ.]
       Penal Code, 1860 – ss. 302, 34 and 120-B – Indian Arms
Act, 1959 –s.25 – The present appellant-original accused no.1 along
with two persons (‘D’ and ‘P’) were tried for having committed
murder of PW-12’s son – FIR was registered against the accused
persons at the instance of PW-12 (father of deceased) – Recovery
memo of weapon was prepared – Trial Court convicted accused
no.1 and ‘D’ of offence punishable u/s. 302/34IPC and acquitted
‘P’ of all charges – On appeal against conviction High Court affirmed
the view taken by trial Court – Accused ‘D’ preferred SLP challenging
his conviction and sentence, which was rejected by the Supreme
Court – Appellant-accused no.1 thereafter approached
SupremeCourt against the judgment of High Court contending that
the identity of the accused persons was not established – Held: PW-
12 and PW-15 (mother of deceased) were not aware of the identity
of the assailants – Their source of information was rumours, on
basis of which an assertion about the identity of the appellant was
made in FIR – Therefore, assertions in the FIR and examination-in-
chief of witnesses are not trustworthy – PW-12 in his examination
in chief asserted that his wife (PW-15) informed him that on the day
previous to incident two accused persons came to their house asking
about their son, while he was away – Whereas, PW-15 had not
asserted in her examination-in-chief that two accused had come to
her house on previous day hence, there was no occasion for her to
have seen the appellant earlier – Furthermore, no Test Identification
parade was conducted – Box identification for the first time in court
is not reliable in itself to establish the identity of the assailants –
Evidence of recovery is not in itself sufficient in absence of
substantive evidence – Prosecution failed to establish its case beyond
reasonable doubts – Appellant acquitted – Similar benefit of doubt
extended to the accused ‘D’ and acquittal granted.
                                  1
2            SUPREME COURT REPORTS                      [2022] 2 S.C.R.


A         Allowing the appeal, the Court
           HELD: 1. It is quite clear that PW-12 and PW-15 were not
    aware of the identity of the assailants. Their source of information
    was rumours, on the basis of which an assertion about the identity
    of the appellant was made in the first information report. What
B   was the source of information, was never disclosed at any juncture
    nor any witness was examined by the prosecution to establish
    that. In the absence of primary source who knew the identity and
    had witnessed the incident, such assertions in the first information
    report as well as the examination-in-chief of the witnesses would
    not be adequate and trustworthy. It was not even the case of PW-
C   15 that two convicted accused had come to her house on the
    previous day. As a matter of fact, she did not even assert anything
    about the incident that occurred on the previous day. There was,
    thus, no occasion for her to have seen the convicted accused
    earlier. Furthermore, no test identification parade was conducted.
D   Box identification by the witnesses for the first time in court, in
    the circumstances, could not by itself be relied upon to establish
    the identity of the assailants. [Para 17][9-E-H]
          2. That leaves this with subsidiary evidence regarding
    recovery, which in the absence of substantive evidence, by itself
E   would not be sufficient. In the circumstances, in our considered
    view, the prosecution failed to establish its case beyond
    reasonable doubt. The appellant would, therefore, be entitled to
    acquittal. The instant appeal is thus allowed acquitting him of the
    charges levelled against him. [Para 18][10-A-B]

F         3. In view of this Court, the cases of both the convicted
    accused i.e. ‘D’ and the present appellant stand on the same footing
    and if after having considered the matter, benefit is given to the
    present appellant, similar benefit ought to be extended to ‘D’.
    [Para 20][10-C-D]

G         Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra
          (2003) 2 SCC 708; Harbans Singh vs. State of U.P.
          (1982) 2 SCC 101 : [1982] 3 SCR 235 – relied on.



H
                    SURYAVIR v. STATE OF HARYANA                               3


                           Case Law Reference                                  A
[2003] 2 SCC 708                       relied on             Para 21
[1982] 3 SCR 235                       relied on             Para 21
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
177 of 2022.                                                                   B
      From the Judgment and Order dated 12.03.2014 of the High Court
of Punjab and Haryana at Chandigarh in CRA No. D-1049-DB of 2009.
      R. Basant, Sr. Adv., Sudarshan Rajan, Mahesh Kumar, Rohit
Bhardwaj, Hitain Bajaj, Vishnu Pazhanganat, Ms. Swati Garg, Prabodh
Shukla, Advs. for the Appellant.                                               C
     S. Udaya Kumar Sagar, AAG, Dr. Monika Gusain, Adv. for the
Respondent.
       The Judgment of the Court was delivered by
       UDAY UMESH LALIT, J.                                                    D
       1. Delay condoned. Leave granted.
      2. This appeal challenges the judgment and order dated 12.03.2014
passed by the High Court1 in CRA-D-No.1049-DB of 2009.
      3. The present appellant (original accused No.1) and two persons         E
named Devender alias Dhola and Pardeep were tried in Sessions Trial
No.16 of 19.03.2009 in the Court of Sessions Judge, Jind for having
caused the murder of one Rajinder alias Raju on 1.10.2008 at about 6.00
p.m and thereby committed offences punishable under Section 302/120-
B of the Indian Penal Code, 18602 and Section 25 of the Indian Arms
Act, 19593.                                                                    F
       4. The crime came to be registered pursuant to FIR No.566 of
01.10.2008 lodged with City Police Station, Jind at the instance of one
Om Prakash, later examined as PW-12 in the trial. The substantive part
of the report was as under:
                                                                               G
       “Yesterday, on 30.09.2008, I had been to Delhi, as usual for bringing


1
  The High Court of Punjab and Haryana at Chandigarh.
2
   ‘IPC’, for short.
3
  ‘The Arms Act’, for short.                                                   H
4           SUPREME COURT REPORTS                          [2022] 2 S.C.R.


A        the goods. On my return to my house in the evening at about 5.30,
         my wife Janki Devi told me that Kuldeep and Kamaljeet had sent
         two youngsters at our home pretending to see the house, who
         forcibly entered the house and asked about our son Raju, who
         was not present at house at that time. They were sent out by my
         wife. My wife can identify them on confrontation. Today, at about
B
         6.00 p.m. I and my wife Janki Devi, were going to market for
         purchasing some household goods. When, after coming out of the
         house, we reached at the main road, on which the ‘Gurudwara’
         situates, my son Raju was seen coming from Bharat Cinema side.
         A white car came alongwith him from his back side, occupied by
C        three youngsters. The car was suddenly stopped by the side of
         Raju and two boys alightened from it and, before my sight, one of
         the boys fired from his pistol on Raju’s neck. Raju fell down on
         the ground right on receiving the shot and the duo fled away towards
         the canal in that car. Later on, whose names were known to be
D        Suryavir son of Balram, Brahman r/o Aggarwal Market, Jind,
         Pardeep son of Balwan Jat r/o Bhiwani Road, Jind and Devender
         @ Dhola son of Umed Singh, caste Jat of Sharma Nagar, Bhiwani
         Road, Jind. I and my wife started taking care of my son Raju who
         was smeared with blood and brought him to General Hospital,
         Jind for treatment in a three-wheeler, who breathed his last in the
E        way itself. I suspect that Kamaljeet and Kuldeep sons of Meghraj
         Punjabi resident of Ved Nagar, Jind hatching a conspiracy, have
         got my son Raju shot dead through Suryaveer, Pardeep and
         Devener @ Dhola, due to the grudge of not vacating the house.”
          5. Post-mortem on the body of the deceased was conducted by
F   Dr. Ashwani Kumar, later examined as PW-2, who observed: -
         “3. Injuries – (A) A lacerated wound of size 1 centimeter x 0.9
         cm x depth (/) on gape of neck placed 1 cm below posterior hairline
         and 2 cm lateral to midline on left side. Margins are inverted and
         tattooing present around the wound clotted blood was present
G
         around the wound.
         (B) Lacerated wound of size 1.8 x1 cm x depth (?) was present
         on neck 9 cm above to upper end of sternum and 1.5 cm lateral to
         midline on left side Horizontal placed Margins averted Clotted
         blood was present around the wound.
H
                  SURYAVIR v. STATE OF HARYANA                                 5
                     [UDAY UMESH LALIT, J.]

              On dissection of injury No.A. subcutaneous tissue and            A
      muscles were lacerated on further dissection, there is laceration
      of left wall of trachea. Major blood vessel on left side were lacerate
      collected of blood was present in trachea and illegible. On further
      dissection injury No.A communicates with injury No. B.
      (C) A lacerated wound of size 1 x 1 cm depth (?) was present on          B
      anterior surface of left thigh 9 cm below anterior superior iliac
      spine margins are inverted and tattooing was present Clotted blood
      was present.
             On dissection of injury No.C there is laceration of
      subcutaneous soft and muscles on further dissection by going             C
      illegible and illegible there was of relieve girds (anterior margin)
      illegible left illegible and found embedded in the muscles between
      L4 & L5 vertebras on left side.
      4. Scalp Skull, chest wall ribs and cartilages, abdominal wall mouth
      pharynx esophagus illegible bladder and organs of generations            D
      were healthy Brain Membranes pleura right and left lung, beast
      illegible have spleen kidneys stomach small and large intestine
      pale healthy, stomach contains 100 cc of semi digested food, small
      intestine contains chyme and gases, large intestine contains fecal
      matter and gases. Larynx and trachea as described.
                                                                               E
      In my opinion cause of death in this case was due to shock and
      hemorrhage as a result of injuries describe by me. All injuries
      were antemortem in nature and sufficient to cause death in ordinary
      course of nature.”
      6. After completion of investigation, chargesheet was filed in which     F
it was asserted that the assailants had come on motorcycles and after
having fired at the deceased had fled away on the motorcycles.
     7. During the trial, the prosecution relied upon the testimony of
PW-12 Om Parkash, father of the deceased and PW-15 Janki Devi,
mother of the deceased.
                                                                               G
      A.     PW-12 in his examination-in-chief stated as under:-
             “On 30.09.2008, I returned from Delhi in the evening and
             my wife informed that two young boys had come at in our
             house and they had entered our house forcibly. She further
             told me that our landlord sent them. She further told me          H
6   SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A     that they had enquired about Rajinder alias Raju from her
      and she had sent them out saying that Rajinder alias Raju
      was not available in the house.
      On the next day i.e. 1.10.2008 after I returned from Delhi,
      I alongwith my wife sent to the market to make some
B     purchase of household articles. When we reached on the
      road of the market, we saw Rajinder alias Raju coming
      from the side of Bharat Cinema. In the meantime, 2-3
      persons came from Bharat Cinema side and they fired at
      my son Rajinder alias Raju and after that we lost our senses.
      Thereafter, I brought my son Rajinder alias Rajuin an auto
C     rickshaw to General Hospital, Jind. Again said when I was
      bringing him to the hospital, Rajinder alias Raju died on the
      way. There was rumour in the Mohala that Suryavir,
      Devender alias Dhola and Pardeep had fired at my son
      Rajinder alias Raju. Said Suryavir, Devender alias Dhola
D     and Pardeep are today present in the Court facing trial in
      this case. I do not know why they killed my son Rajinder
      alias Raju. I lodged report with the police vide my statement
      Ex.PH. It bears my signatures. The police had called me
      and had told that Suryavir, Devender alias Dhola and
      Pardeep were the assailants. Again said, I was called by
E     the police for identification of the accused and I had identified
      them as the killers of my son Rajinder alias Raju. Memos
      Exs.PS and PT bear my signatures. The police had come
      to my house at noon time and had taken me away saying
      that some secret information was received. The police had
F     interrogated the accused, who had disclosed about the
      weapon of offence. The police had first taken me to Rohtak
      Road, Jind and thereafter the accused had got recovered
      the weapons from near an electric pole installed near the
      Forest Office. After removing some earth the accused had
      got recovered pistol and revolver, and cartridges, which were
G     wrapped in a polythene bag. The police had brought the
      pistol and revolver after putting the same in black polythene
      bag and thereafter, I do not know what proceedings the
      police did. Recovery memo Ex.PU bears my signatures.
      The police obtained my signatures on sketches Ex.PV and
H     PW when the pistol and revolver were got recovered. I do
             SURYAVIR v. STATE OF HARYANA                                 7
                [UDAY UMESH LALIT, J.]

        not know what proceedings the police on 24.10.2008 did.”          A
     In his cross-examination, the witness accepted:
              “It is correct that I had stated to the police that three
        young boys had come in a white colour Maruti car and one
        out of them had fired at my son and thereafter the same
        went away in the same car. Volunteered- at that time, I           B
        was not in complete senses.”
B.      PW-15 Janki Devi in her examination-in-chief stated as
        under:-
        “All the three accused, now present in the Court, have
        committed murder of my son named Raju on 1st October,             C
        i.e. about seven months back and now 8th months is running,
        at about 06:00 P.M. At that time, I alongwith my husband
        had come from our house for going to the market. After
        we had covered a short distance from our house towards
        the road, I saw that my son Raju was coming from the side         D
        of Bharat Cinema, Jind. When we reached the road. I saw
        that my son Raju was at a distance of 15 to 20 yards from
        us. All the three accused now present in the Court were
        standing near my son Raju and all the three accused were
        armed with pistols and they fired shots at my son Raju.
        After receipt of fire shots my son Raju fell down. Thereafter,    E
        we took our son Raju to General Hospital Jind, in a three-
        wheeler. Before reaching the hospital, my son died on the
        way.
                                  ………
        The accused present in the Court, after firing shots at my        F
        son Raju, had then escaped from the spot on the motorcycles
        towards the canal. From the hospital, I came back to my
        house. The police had visited the spot and lifted blood from
        there vide recovery memo Ex.PM. which was attested by
        me. I had pointed out the place of occurrence to the police.”     G
     In her cross-examination, the witness stated:-
        “I had mentioned before the police that the accused after
        firing shot had escaped on the motorcycles (confronted with
        statement Ex.DA wherein it is not so recorded).”
                                                                          H
8            SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A          8. The Trial Court by its judgment and order dated 15.10.2009
    accepted the case of prosecution insofar as accused Suryavir and
    Devender were concerned, while benefit of doubt was given to the third
    accused Pardeep, who was acquitted of all the charges. The Trial Court
    convicted Suryavir and Devender of the offences punishable under
    Section 302 read with 34 IPC and sentenced them to undergo life
B
    sentence. For the offence under Section 25 of the Arms Act, they were
    awarded substantive sentence of one year and six months and to pay a
    fine in the sum of Rs.2000/-.
          9. The convicted accused Suryavir and Devender preferred CRA-
    D-No. 1049-DB and 1087-DB of 2009 respectively in the High Court,
C
    which by its common judgment and order impugned herein affirmed the
    view taken by the Trial Court and dismissed both the appeals.
           10. Accused Devender alias Dhola preferred S.L.P. (Crl.) No.9957
    of 2016 challenging his conviction and sentence. Said Special Leave
    Petition was rejected by this Court at the admission stage on 05.12.2016
D   without any reasoned order.
          11. S.L.P. (Crl.) Diary No(s). 19963 of 2020 was thereafter
    preferred by Suryavir i.e. the appellant with delay challenging the very
    same judgment rendered by the High Court.
E          12. At the stage of issuance notice, it was fairly accepted that the
    case of the co-accused was rejected by this Court but it was submitted
    that the matter called for interference by this Court.
          13. Now the matter is taken up for final hearing.
         14. We have heard Mr. R. Basant, learned Senior Advocate and
F   Mr. Uday Kumar Sagar, learned Advocate for the State.
          15. Mr. Basant learned Senior Advocate submits:-
          (a) Going by the contents of the First Information Report, PW-12
    was unaware of the identity of the assailants and it was only on the basis
G   of rumors that he came to know about the names of the assailants. The
    source of such information establishing the identity of the assailants was
    neither disclosed nor any evidence in that behalf was led by the
    prosecution.
          (b) PW-12 Om Prakash clearly asserted that the assailants had
H   come in a white car which version was completely given a go-by when
                  SURYAVIR v. STATE OF HARYANA                                9
                     [UDAY UMESH LALIT, J.]

the witnesses stepped into the box; and the prosecution now asserted          A
that the assailants came on motorcycles and after having shot the
deceased fled away on the motorcycles.
       (c) The incident of the previous day was not even adverted to by
PW-15; Janki Devi. It was also not the case of the prosecution that
those two persons who had come to the house of PWs 12 and 15 were             B
the same persons who were now convicted.
       (d) Though the witnesses had never disclosed the identity of the
assailants on the basis of their own knowledge, even, in order to check
whether they had really seen the assailants, test identification parade
ought to have been conducted. Such test identification parade would           C
have afforded greater assurance to the Court about the identity of the
assailants.
      (e) The alleged enmity with and suspicion against Kamaljeet and
Kuldip was not even investigated into.
       16. Mr. Uday Kumar Sagar, learned Advocate appearing for the           D
State on the other hand submits that two courts had consistently taken
the view which also found affirmation in dismissal of Special Leave
Petition preferred by co-accused Devender and that there is no reason
to take a different view in the matter.
       17. It is quite clear that PW-12 and PW-15 were not aware of the       E
identity of the assailants. Their source of information was rumours, on
the basis of which an assertion about the identity of the appellant was
made in the first information report. What was the source of information,
was never disclosed at any juncture nor any witness was examined by
the prosecution to establish that. In the absence of primary source who       F
knew the identity and had witnessed the incident, such assertions in the
first information report as well as the examination-in-chief of the
witnesses would not be adequate and trustworthy. It was not even the
case of PW-15 that two convicted accused had come to her house on
the previous day. As a matter of fact, she did not even assert anything
about the incident that occurred on the previous day. There was, thus,        G
no occasion for her to have seen the convicted accused earlier.
Furthermore, no test identification parade was conducted. Box
identification by the witnesses for the first time in court, in the
circumstances, could not by itself be relied upon to establish the identity
of the assailants.
                                                                              H
10               SUPREME COURT REPORTS                         [2022] 2 S.C.R.


A            18. That leaves us with subsidiary evidence regarding recovery,
     which in the absence of substantive evidence, by itself would not be
     sufficient. In the circumstances, in our considered view, the prosecution
     failed to establish its case beyond reasonable doubt. The appellant would,
     therefore, be entitled to acquittal. The instant appeal is thus allowed
     acquitting him of the charges levelled against him.
B
           19. We must now consider the effect of dismissal of S.L.P. (Crl.)
     No.9957 of 2016 preferred by co-accused-Devender alias Dhola. The
     order dismissing the special leave petition did not give any reason for
     dismissal.
C           20. In our view, the cases of both the convicted accused i.e.
     Devender and the present appellant stand on the same footing and if
     after having considered the matter, benefit is given to the present
     appellant, similar benefit ought to be extended to Devender.
            21. In similar circumstances, in Akhil Ali Jehangir Ali Sayyed v.
D    State of Maharashtra4, a Bench of two judges of this Court relied upon
     the earlier decision rendered by a Bench of three Judges of this Court in
     Harbans Singh vs. State of U.P.5 and extended the benefit to a co-
     accused whose special leave petition and review application were
     dismissed by this Court.
E             The relevant discussion on the point was:
                 “6. The above is not enough to dispose of this matter. As the
                 second accused Jabbar was placed on the same situation as
                 the appellant in this case (if not lesser), Article 21 of the
                 Constitution would not permit us to deny the same benefit to
F                the second accused, notwithstanding the fact that the SLP and
                 the review application filed by him have been dismissed by this
                 Court. We are supported on this aspect by a course adopted
                 by a three Judge bench headed by chief justice Chandrachud
                 in Harbans Singh v. State of U.P. In that case also, the co-
                 accused were sentenced and the sentence had been confirmed
G                by this Court earlier. But when a benefit was granted in another
                 appeal to one of the other co-accused, the three Judge bench
                 held that the same benefit shall be extended to the earlier co-

     4
         (2003) 2 SCC 708
     5
H        (1982) 2 SCC 101
        SURYAVIR v. STATE OF HARYANA                                11
           [UDAY UMESH LALIT, J.]

accused also albeit the dismissal of their appeals on an            A
antecedent date.
7.The following passage from the said decision can be profitably
extracted below:
   “19. In the circumstances hereinabove stated, I am of the
                                                                    B
   opinion that it will be manifestly unjust to allow the death
   sentence imposed on the petitioner to be executed. The
   question that, however, troubles me is whether this Court
   retains any power and jurisdiction to entertain and pass any
   appropriate orders on the question of sentence imposed on
   the petitioner in view of the fact that not only his special     C
   leave petition and review petition have been dismissed by
   this Court but also the further fact that his petition for
   clemency has also been rejected by the President.
   20. Very wide powers have been conferred on this Court
   for due and proper administration of justice. Apart from the     D
   jurisdiction and powers conferred on this Court under
   Articles 32 and 136 of the Constitution, I am of the opinion
   that this Court retains and must retain, an inherent power
   and jurisdiction for dealing with any extraordinary situation
   in the larger interests of administration of justice and for
                                                                    E
   preventing manifest injustice being done. This power must
   necessarily be sparingly used only in exceptional
   circumstances for furthering the ends of justice. Having
   regard to the facts and circumstances of this case, I am of
   the opinion that this is a fit case where this Court should
   entertain the present petition of Harbans Singh and this Court   F
   should interfere.”
8. After bestowing our anxious consideration on the fact
situation in this case and also the spirit of Article 21 of the
Constitution we hereby order that the conviction passed on the
second accused Jabbar shall also stand altered to Section 304       G
Part I, and a sentence of rigorous imprisonment for ten years
be awarded to him. This is done on a parity of reasoning and
justice, otherwise glaring injustice would result for him in a
case where his role was by no means more serious than that
of the present appellant who was A 1 in the case.”
                                                                    H
12             SUPREME COURT REPORTS                         [2022] 2 S.C.R.


A           22. In the premises, for furthering the ends of justice, we recall
     the order of dismissal passed by this Court in S.L.P. (Crl.) No.9957 of
     2016 and said SLP is restored to the file. This course is adopted even in
     the absence of any such prayer or application on part of Devender. We
     proceed to grant leave in his matter and allowing his appeal, we extend
     similar benefit to said Devender. He is thus acquitted of all the charges
B
     levelled against him.
            23. The Registry is directed to send appropriate intimation with
     regard to the appeal arising out of SLP (Crl.) No.9957/2016 being allowed
     to the concerned Jail authorities so that benefit can be extended to said
     Devender.
C
           24. Both convicted accused shall be set at liberty unless their
     custody is required in connection with any other offence.

     Ankit Gyan                                                 Appeal allowed.
     (Assisted by Aarsh Choudhary, LCRA)
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