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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1548 OF 2011

SURESH SINGHAL ... APPELLANT(S)

VERSUS

STATE (DELHI ADMINISTRATION) ...RESPONDENT(S)

JUDGMENT

S. A. BOBDE, J.

This appeal is directed against the judgment dated 01.09.2010 of

the Delhi High Court in Criminal Appeal No.232 of 1997 filed by the

appellant-Suresh Singhal against his conviction and the sentence awarded to

him. The appeal filed by the State seeking death penalty for the appellant

and against the acquittal of Roshal Lal was dismissed by the High Court in

Criminal Appeal No.226 of 1997.

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Page 2 THE INCIDENT

2. The appellant was prosecuted for the incident that occurred on the

04.03.1991 at about 5.15 pm. The deceased-Shyam Sunder and Kishan Lal,

both brothers, were killed in the incident at the office of Lala Harkishan Dass

located at Rajendra Park, Nangloi. The statement of Lala Harkishan Dass

was recorded. He had arranged a meeting for settling a dispute that had

arisen between the appellant and the deceased. The appellant had

apparently agreed to sell a property through a property dealer, namely the

deceased-Shyam Sunder. The purchasers were the Gurdaspur Party.

Apparently there was some misunderstanding between the parties and

eventually a meeting was arranged at the office of Lala Harkishan Dass.

3. The deceased-Shyam Sunder and his two brothers Hans Raj

and Kishan Lal were already at the office of Lala Harkishan Dass. The

appellant-Suresh Singhal and his father Pritpal Singhal accompanied by

another man (Roshan Lal) reached the office at about 5.00 pm. As soon as

they entered the office, there was an altercation between the appellant and

the deceased. The appellant took out his revolver and shot Shyam Sunder.

Thereafter, the appellant and his father Pritpal Singhal who had come

to the office in a car, left the car behind and fled the place in the car of

another visitor.

In the incident Shyam Sunder and Kishan Lal were killed.

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Page 3 4. The Sessions Court convicted the appellant for the murder of Shyam

Sunder under Sections 302 and 304 read with Section 34 of Indian Penal

Code (hereinafter referred to as ‘IPC’) for the murder of Kishan Lal. His

co-appeallant-Pritpal Singhal who died on 28.03.2007, during the pendency

of the suit was also convicted under Section 307 read with Section 34 of IPC

for attempting the murder of Hans Raj. The third accused Roshan Lal

was acquitted.

WITNESSES TO THE SHOOTING

5. The actual shooting was claimed to have been witnessed by Lala

Harkishan Dass (PW-2), Hans Raj (PW-3) and Raj Kumar (PW-4). Lala

Harkishan Dass (PW-2) was declared hostile. Hans Raj (PW-3) is the injured

eye-witness, and the brother of the deceased-Shyam Sunder.

6. Two distinct versions about the actual shooting have arisen from the

deposition of the witnesses. One version is that there was no scuffle before

which the appellant fired at the deceased. The other is that there was a

scuffle in which the appellant was attempted to be strangulated.

NO SCUFFLE

7. The first version is mainly deposed to by Hans Raj (PW-3). Hans Raj is

the brother of the deceased. He went to the office of Lala Harkishan Dass

where the parties had decided to meet to resolve the dispute. He deposed

that the moment the deceased entered the room, the appellant asked his

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Page 4 brother-the deceased, to tell him what had happened yesterday. The

deceased got up and responded to it by asking the appellant whether he had

come to settle the dispute or to quarrel. The appellant said that there won’t

be any quarrel but something different would happen. This witness said

that “he then took out a revolver from his coat pocket and fired at my

brother-Shyam Sunder.” This is all that the witness stated about the actual

shooting. Thereafter this witness stated that he tried to catch hold of the

appellant but the appellant exhorted his father to finish all the brothers.

Thereafter, Pritpal Singhal took out a revolver from his pocket and both

the appellant as well as Pritpal Singhal started firing at him and his

brother-Kishan Lal. In the firing he was injured and received one bullet in

his stomach. This version significantly does not speak of any scuffle

preceding the shooting. In the cross-examination later on, he specifically

stated in the cross-examination that there was no scuffle in which the

deceased tried to strangulate the appellant. This witness thus clearly stated

that the appellant shot the deceased as soon as he rose.

8. The narration of this witness is significant since he suggests that the

deceased was sitting when the appellant entered the room and after

a menacing exchange of words, shot the deceased as soon as he got up.

9. Another witness Tarsem Kumar (P.W. 30) stated in his deposition that

“at that time, Shyam Sunder was sitting by my side on a sofa and he said

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Page 5 that he has been shot at with a bullet. I did not hear anything except this.

I did not even hear the noise of firing”.

10.PW-30 in his deposition suggests that the appellant shot him from the

front as he got up. This throws a doubt on the credibility of this witness

because the entry wound of the bullet is on the back of deceased, and not in

the front. Thus we are not inclined to accept the narration of PW-30 and

PW-3, who have both stated that the appellant fired at the deceased

from the front.

SCUFFLE

11.The other version deposed by Subhash Chand Mahajan (PW-23) and

Sarover Kumar (PW-27) is that there was a scuffle between the three

brothers i.e. deceased-Shyam Sunder, Kishan Lal and Hans Raj on one hand,

and the appellant-Suresh Singhal on the other hand. The deceased tried to

strangulate the appellant as they fell during the struggle, and thereafter

pulled out his gun and shot the deceased. He then exhorted his father to

shoot the others.

12.Subhash Chand Mahajan (PW-23) stated in his cross examination that

he saw the appellant on the floor being strangulated. The witness stated

that there was a scuffle and thereafter a shot fired.

13.The other witness Sarover Kumar (PW-27) belongs to the Gurdaspur

Party and as such is not a direct party to the dispute between the appellant

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Page 6 and the deceased. He stated that immediately after the appellant-Suresh

Singhal and Pritpal Singhal arrived, there was a scuffle between the

appellant-Suresh Singhal on one hand and the three brothers including the

deceased-Shyam Sunder on the other. He deposed that there were shouts

of “Chhodo Chhodo” during the scuffle and then the deceased-Shyam Sunder

cried “Hai Mujhe Goli Lag Gayi” i.e. ‘I have been shot’. He stated that he

immediately ran out of the side gate along with the other persons and hid

behind the cement bags. The testimony of this witness has remained

unshaken in cross-examination. In fact in cross-examination, the witness

stated that a scuffle took place within the twinkling of an eye after the

appellant and the others entered the office.

14.The stark difference between the two versions is that of the scuffle

preceding the incident of the shooting. Whether there was a scuffle or not

determines the tenability of the main submission advanced by Mr. Sushil

Kumar, the learned senior counsel, that the appellant acted in the exercise of

his right of private defence and shot the deceased. It may be noted that,

both the Sessions Court and the High Court have found that there was a

sudden fight in the course of which a common intention developed between

the appellant and his father to cause the death of the deceased-Shyam

Sunder and Kishan Lal.

15.Having closely examined the evidence, we are of the view that in fact

a scuffle did take place. In this scuffle, Shyam Sunder alone, or along with

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Page 7 his two brothers tried to strangulate the appellant-Suresh Singhal. The

appellant reached for his revolver, upon which the deceased released him

and turned around to run away. At this point the appellant shot at him,

either still lying down or having got up. This probablizes and explains the

fact that it was not a close shot and that the bullet entered the body below

the right shoulder of the deceased at the back and travelled upwards.

NOT A CLOSE SHOT

16.The shot in question was obviously not a close shot. There was no

blackening, tattooing or charring around the bullet entry wound. In fact, the

doctors specifically stated that the shot was fired from a distant range. It is

well known that the shooting from close quarters chars or blackens the body.

It would be germane to quote from “Modi’s Textbook of Medical Jurisprudence and

Toxicology (25th Edition). p. 631” with reference to the above:-

“When there is a close shot that is in the range of powder blast and

the flame is within one to three inches, for small arms there is a

collar of soot and grease (if present on the bullet) around the

circular wound of entry. Singed hairs may be seen if the body is

not covered with clothing. Partially burnt and unburnt grains of

powder are blasted into the skin causing a tattooing which cannot

be easily wiped off. Wadding, pieces of clothing or other debris

may be found lodged in the wound. The entry wound of a revolver

fired very near or in contact with the skin is generally stellate or

cruciform in shape instead of being circular. When it is fired

beyond a distance of 12 inches, there are no powder marks of soot

or heat effects around the wound. If the revolver is fired close to

the skin but held at an angle, the smudging and tattooing is limited

only to one side of the bullet hole. The wound of exit is often larger

than the wound of entrance, and its edges are irregular and everted,

but free from scorching and tattooing.”

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Page 8 17.The statement of the doctor that it was shot from a distant range has

not been challenged in the cross-examination. There is another reason

which lends credence to the assumption that the shot was not fired from

close quarters, and that is the fact that the bullet did not exit the body.

Indeed this happens when the bullet being fired from a distance loses its

velocity. We have made these observations to support the inference that

there is no reliable evidence to show that the appellant shot the deceased at

close quarters when he was being strangulated. The shot was in

all probability fired when the deceased released the appellant during the

scuffle, and on seeing him reach for his gun moved away to escape after

turning around.

RECOVERY AND BALLISTIC EXPERT REPORT

18.We must at this stage advert to the recovery from the scene and

the ballistic expert report. Altogether 7 bullets were fired, and no

empty cartridge cases were recovered from the scene of the crime. One

empty .32 bore Smith & Wesson revolver was recovered from Suresh

Singhal. One .32 bore Smith & Wesson revolver was recovered from Pritpal

Singhal. One .22 HP rifle and nine empty cartridges were also recovered

from the roof of Pritpal Singhal’s house. One .32 bullet was taken out from

the body of deceased-Shyam Sunder. Three .32 bullets were recovered from

the body of deceased Kishan Lal.

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Page 9 19.The appellant and his father both had licensed revolvers but the

forensic report does not definitely disclose that the bullets came from the

licensed guns belonging to the appellant and Pritpal Singhal.

20.Products of combustion of cartridge powder were detected only in the

barrel of the .32 revolver recovered from Pritpal Singhal. Products of

combustion of cartridge powder could not be detected in the barrel of the

revolver recovered from the appellant or the .22 HP rifle. All the .32

cartridge cases were found to have been fired from a single .32 calibre fire

arm, but none of them from any of the two .32 revolvers which were seized.

The .32 lead bullet recovered from the body of deceased was fired from .32

calibre fire arm. The reports states that this bullet could have been fired

from the revolver seized from Pritpal Singhal, and not from the revolver

seized from the appellant. However, a definite opinion was not given for the

want of sufficient characteristic marks on the crime bullets. The three

bullets recovered from the body of Kishan Lal could not be linked with any of

the .32 revolvers seized. The ballistic expert report shows that none of the

bullets were recovered from the .32 weapon seized from the appellant.

It is thus not possible to determine the weapon that was used by the

appellant–Suresh Singhal.

PRIVATE DEFENCE

21.With regard to the evidence that the appellant was being assaulted

and in fact attempted to be strangulated, it needs to be considered whether

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Page 10 the appellant shot the deceased in the exercise of his right of private

defence. Such a right is clearly available when there is a reasonable

apprehension of receiving the injury.

22.The right of private defence is contemplated by Section 97 of IPC

which reads as follows:-

“Section 97. Right of private defence of the body and

of property.— Every person has a right, subject to

the restrictions contained in section 99, to defend—

First — His own body, and the body of any other

person, against any offence affecting the human

body;

Secondly —The property, whether movable or

immovable, of himself or of any other person,

against any act which is an offence falling under the

definition of theft, robbery, mischief or criminal

trespass, or which is an attempt to commit theft,

robbery, mischief or criminal trespass.”

In Darshan Singh vs. State of Punjab and Another

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, this court laid

down the following principles which emerged upon the careful consideration

and scrutiny of a number of judgments as follows:-

“58. The following principles emerge on scrutiny of

the following judgments:

(i) Self-preservation is the basic human instinct and

is duly recognised by the criminal jurisprudence of all

civilised countries. All free, democratic and civilised

countries recognise the right of private defence

within certain reasonable limits.

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(2010) 2 SCC 333

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Page 11 (ii) The right of private defence is available only to

one who is suddenly confronted with the necessity of

averting an impending danger and not of

self-creation.

(iii) A mere reasonable apprehension is enough to

put the right of self-defence into operation. In other

words, it is not necessary that there should be an

actual commission of the offence in order to give rise

to the right of private defence. It is enough if the

accused apprehended that such an offence is

contemplated and it is likely to be committed if the

right of private defence is not exercised.

(iv) The right of private defence commences as soon

as a reasonable apprehension arises and it is

coterminous with the duration of such apprehension.

(v) It is unrealistic to expect a person under assault

to modulate his defence step by step with any

arithmetical exactitude.

(vi) In private defence the force used by the accused

ought not to be wholly disproportionate or much

greater than necessary for protection of the person

or property.

(vii) It is well settled that even if the accused does

not plead self-defence, it is open to consider such a

plea if the same arises from the material on record.

(viii) The accused need not prove the existence of

the right of private defence beyond reasonable

doubt.

(ix) The Penal Code confers the right of private

defence only when that unlawful or wrongful act is

an offence.

(x) A person who is in imminent and reasonable

danger of losing his life or limb may in exercise of

self-defence inflict any harm even extending to death

on his assailant either when the assault is attempted

or directly threatened.”

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Page 12 23.Having regard to the above, we are of the view that the appellant

reasonably apprehended a danger to his life when the deceased and his

brothers started strangulating him after pushing him to the floor.

As observed by this Court a mere reasonable apprehension is enough to put

the right of self-defence into operation and it is not necessary that there

should be an actual commission of the offence in order to give rise to the

right of private defence. It is enough if the appellant apprehended that such

an offence is contemplated and is likely to be committed if the right of

private defence is not exercised.

24.It was argued by Mr. P.K. Dey, learned counsel for the State, that the

deceased and his brothers were unarmed and there was no need for the

appellant to have used the gun. Given the fact that the deceased and the

others were attempting to strangulate the appellant, it would have been

unrealistic to expect the appellant to “modulate his defence step by step

with any arithmetical exactitude”. This Court has held that a person who is

in imminent and reasonable danger of losing his life or limb may in exercise

of self-defence inflict any harm even extending to death on his assailant

either when the assault is attempted or upon being directly threatened.

We are inclined to think that the appellant had been put in such a position.

25.We have no doubt that the appellant exceeded the power given to him

by law in order to defend himself but we are of the view that the exercise of

the right was in good faith, in his own defence and without premeditation.

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Page 13 In this regard, it would be apposite to reproduce the observation of Sessions

Court which is as follows:-

“Since I feel that the prosecution witnesses are

hiding something at the introduction stage of the

story, I will not impute a prior concert or intention to

the accused. I have no doubt that tempers got fayed

at the spot itself and whatever happened was not a

result of prior meeting of minds amongst the

accused persons.”

26.The High Court has also observed as follows:-

“In the facts and circumstances of the case, we find

it difficult to accept that the murder of Shyam

Sunder and Kishan Lal had been preplanned. Had

Suresh Singhal and his father late Pritpal Singhal

preplanned the murder, they would have chosen

some other place to execute their plan and would not

have done it in the office of the informant, in the

presence of a number of persons. The convict

Suresh Singhal and his father late Pritpal Singhal

knew that a number of persons including the

informant Lala Harkishan Dass and the members of

the Gurdaspur Party would be present in the office of

the informant on that day and in the event of

Krishan Lal and his brother(s) having murdered

there, all these persons would be eye-witnesses

against them. It is, therefore, highly unlikely that

they would have planned to commit murders at that

place. It is true that both of them were armed with

loaded revolvers when they came to the office of the

informant on that day. But that in our view, in the

facts and circumstances of the case, does not

necessarily mean that they had preplanned the

murder, though it does show that they were fully

prepared to meet any eventuality and go to any

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Page 14 extent including use of the firearms they were

carrying with them.”

27.The homicide in the present case thus does not amount to murder in

the view of Exception 2 to Section 300 of IPC

2

. We agree with the

observations of the Sessions Court and the High Court that the homicide was

not the result of premeditation but rather, as the evidence suggests, the

shooting took place in a sudden fight in the heat of passion. It is not possible

to accept the argument of the prosecution that the appellant took undue

advantage of the situation and used the gun even though the

deceased-Shyam Sunder and his brothers were unarmed. Given the

murderous assault on the appellant and the possibility of being attacked

again, may be with arms or may be with the help of the other persons, it is

not possible to attribute undue advantage to have been taken by the

appellant. In such a situation it would be unrealistic to expect the appellant

to calmly assess who would have the upper hand before exercising his right

of private defence.

28.In the circumstances of the case and the findings of the Sessions Court

and the High Court, we find that the homicide falls within Exception 4 to

Section 300 of IPC

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and does not amount to murder.

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“Exception 2. – Culpable homicide is not murder if the offender, in the exercise in good

faith of the right of private defence of person or property, exceeds the power given to him

by law and causes the death of the person against whom he is exercising such right of

defence without premeditation, and without any intention of doing more harm than is

necessary for the purpose of such defence.”

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“Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a

sudden fight in the heat of passion upon a sudden quarrel and without the offender's having

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Page 15 29.Mr. Sushil Kumar, the learned senior counsel for the appellant, argued

that since the evidence states that the shot was fired from a distance and

the deceased was on top of the appellant in the course of the scuffle during

which he was being strangulated, the fatal shot could have only been fired

by Pritpal Singhal. According to the learned counsel, he was the only other

person who had a gun and had every reason to exercise the right of private

defence to protect his son from strangulation.

30.It is not possible for us to accept the argument that merely because

Pritpal Singhal had a gun, and that he could have used it to save his son, he

fired the shot. There is no foundation in the evidence of any of the

witnesses to suggest that Pritpal Singhal fired at the deceased-Shyam

Sunder from any place in the room to save his son. Even otherwise,

shooting at two people grappling on the floor would have been a risk since

the shot could have injured either or both persons. It is therefore, not

possible for us to accept this submission.

31.The strong possibility is that there was a scuffle in which the appellant

was pinned to the floor and attempted to be strangulated by the deceased.

The appellant may have pulled out his gun and upon seeing the gun, the

deceased may have released the appellant and started running upon which

the appellant fired the shot which hit him from the back side. This also

taken undue advantage or acted in a cruel or unusual manner.”

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Page 16 explains the trajectory of the shot in which the bullet entered the body below

the right shoulder, and travelled upwards without exiting.

32.In these circumstances, we are of the view that Suresh Singhal is

undoubtedly guilty of causing death to Shyam Sunder with the intention of

causing death or of causing such bodily injury as is likely to cause death

and therefore guilty of the offence under Section 304 of the IPC. We are

informed that the appellant has already undergone a sentence of 13 ½ years

as on date. We thus sentence him to the period already undergone.

KISHAN LAL’S DEATH

33.The appellant has also been convicted under Section 302 IPC for the

murder of Kishan Lal. Hans Raj (PW-3) deposed that the appellant fired at

his brother, and when he (PW-3) and his brothers-Raj Kumar and Kishan Lal,

tried to catch hold of the appellant, the appellant told his father to finish all

the brothers. He then stated that Pritpal Singhal took out a revolver from

his pocket and both the appellant and his father started firing at him and

his brother-Kishan Lal. He stated that he received two bullets on his

stomach, and one bullet grazed him over the neck portion in the front.

When he started running out, he was hit by another bullet on the back of his

right shoulder.

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Page 17 34.When he and Kishan Lal started running out, he heard Pritpal Singhal

tell Roshan Lal to go outside, get the gun from the vehicle and that the

fourth brother should not be spared.

35.It may be remembered that this witness survived the shooting with

two bullets still lodged in his body. The office in which the firing took place

was a small area. Yet this witness does not specify that the appellant shot

him. He generally states that appellant and his father started firing at

him and his brothers. Thus, it is difficult to say with certainty that the shots

which hit Kishan Lal were fired by Suresh Singhal.

36.In these circumstances all that can be said is that a shot from the

appellant may have hit Kishan Lal or may not have hit Kishan Lal. This

benefit of doubt in law must go to the appellant.

37.For the reasons stated above specifically that Hans Raj (PW-3) did not

specify that the appellant shot him. There is a serious doubt whether it can

be held as having been proved beyond reasonable doubt that the appellant

attempted to murder Hans Raj for which he has been convicted.

38.It is not possible for us to approve the observation of the High Court

that because Suresh Singhal and Pritpal Singhal were armed “it is only

the appellant and/or his father late Pritpal Singhal who could be responsible

for the firing resulting in the murder of late Kishan Lal and the

deceased-Shyam Sunder.

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Page 18 39.We have already held that the appellant killed the deceased in the

exercise of the right of private defence. Pritpal Singhal may or may not have

acted out of the desire to protect Suresh. He did not share the same

intention as that of Suresh. It is not possible to attribute common intention

to kill the three brothers to both the appellant and his father.

40.Hence, we allow this appeal partly and modify the impugned judgment

and order passed by the High Court to the extent that the conviction of the

appellant – Suresh Singhal under section 302 IPC for murder of Kishan Lal is

set aside and his conviction under section 304 IPC is maintained. Since the

appellant has already undergone a sentence of 13 ½ years as on date, we

sentence him under section 304 IPC to the period already undergone. The

appellant is in jail. He be released forthwith from the custody, if not

required in any other case.

….………………………………..J.

[S.A. BOBDE]

….………………………………..J.

[L. NAGESWARA RAO]

New Delhi

February 02, 2017

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