CONSTABLE 907 SURENDRA SINGH & ANR.versusSTATE OF UTTARAKHAND

                  [2025] 2 S.C.R. 239 : 2025 INSC 114

                Constable 907 Surendra Singh & Anr.
                                 v.
                       State of Uttarakhand
                     (Criminal Appeal No. 355 of 2013)
                                28 January 2025
           [B.R. Gavai* and Augustine George Masih, JJ.]


                            Issue for Consideration
       Matter pertains to the correctness of the judgment of the High
       Court setting aside the acquittal by trial court and convicting the
       appellants u/s.302/34 IPC.

                                   Headnotes†
       Penal Code, 1860 – ss.302, 34 – Murder – Common intention –
       Head Constable-main accused along with the appellants-
       Constables intercepted a car on suspicion of smuggling
       illegal liquor, and the Head Constable fired a shot from his
       revolver hitting the co-passenger seated in the front seat of
       the car, resulting in her death – Courts below convicted and
       sentenced the main accused, however his appeal was disposed
       of as abated – As regards the appellants, trial court acquitted
       them, however, the High Court convicted them for the offence
       punishable u/s.302/34 and sentenced them to imprisonment
       for life – Correctness:
       Held: For convicting the accused with the aid of s.34, the prosecution
       must establish prior meetings of minds – It must be established that
       all the accused had preplanned and shared a common intention
       to commit the crime with the accused who has actually committed
       the crime – It must be established that the criminal act has been
       done in furtherance of the common intention of all the accused –
       Prosecution failed to place on record any evidence to show that
       the appellants had common intention with Head Constable prior
       to shooting the deceased – Impugned judgment quashed and set
       aside – Code of Criminal Procedure, 1973 – s.379 – Arms Act,
       1959 – s.27(3). [Paras 18-20]



* Author
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       Code of Criminal Procedure, 1973 – s.378 – Appeal against
       acquittal – Scope of interference – When:
       Held: Interference with the finding of acquittal recorded by the trial
       judge would be warranted by the High Court only if the judgment
       of acquittal suffers from patent perversity; that the same is based
       on a misreading/omission to consider material evidence on record;
       and that no two reasonable views are possible and only the view
       consistent with the guilt of the accused is possible from the evidence
       available on record. [Para 12]

                                Case Law Cited
       Babu Sahebagouda Rudragoudar and Others v. State of Karnataka
       [2024] 5 SCR 174 : (2024) 8 SCC 149; Gadadhar Chandra v. State
       of West Bengal (2022) 6 SCC 576; Ezajhussain Sabdarhussain
       and another v. State of Gujarat (2019) 14 SCC 339; Jasdeep Singh
       alias Jassu v. State of Punjab [2022] 2 SCR 647 : (2022) 2 SCC
       545; Madhusudan and Others v. State of Madhya Pradesh, 2024
       SCC OnLine SC 4035 – relied on.

                                   List of Acts
       Penal Code, 1860; Arms Act, 1959; Code of Criminal Procedure,
       1973.

                                List of Keywords
       Acquittal by trial court; Common intention; Prosecution to establish
       prior meetings of minds; Preplanning and sharing common intention
       to commit crime; Criminal act; Furtherance of common intention;
       Patent perversity; Misreading/omission to consider material
       evidence on record.

                               Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       355 of 2013
       From the Judgment and Order dated 27.12.2012 of the High
       Court of Uttarakhand at Nainital in GA No. 100 of 2008 and CRLA
       Nos. 217 and 218 of 2006
       With
       Criminal Appeal No. 788 of 2013
[2025] 2 S.C.R.                                                         241

       Constable 907 Surendra Singh & Anr. v. State of Uttarakhand


                                      Appearances for Parties
       Devadatt Kamat, Sr. Adv., Atul Kumar, Ms. Sweety Singh,
       Ms. Archana Kumari, Rahul Pandey, Harsh Kumar, Sudipta Singha
       Roy, Himanshu Raj, Avdhesh K Singh, Munindra Dvivedi, Ms. Divya
       Bhalla, Rajesh Gulab Inamdar, Revanta Solanki, Hruday Bajentri,
       Ms. B. Vijayalakshmi Menon, Advs. for the Appellants.
       Kaushalpati Gautam, A.A.G., Akshat Kumar, Advitiya Awasthi,
       Rajeev Kumar Dubey, Kamlendra Mishra, Advs. for the Respondent.

                        Judgment / Order of the Supreme Court

                                                 Judgment

       B.R. Gavai, J.

1.     These appeals challenge the judgment and final order dated 27th
       December 2012 passed by the High Court of Uttarakhand at Nainital
       by which the High Court dealt with three Criminal Appeals which had
       been filed challenging the judgment and order dated 6th September
       2006 passed by the learned Sessions Judge, Dehradun1. The first set
       of appeals before the High Court being Criminal Appeal Nos. 217 of
       2006 and 218 of 2006 challenging the judgment and order of the trial
       court had been preferred by accused No.1-Jagdish Singh by which
       he had been convicted for the offence punishable under Section 302
       read with Section 34 of the Indian Penal Code, 18602 and Section
       27(1) of the Arms Act, 19593 and sentenced to undergo imprisonment
       for life. The second set of appeal being Government Appeal No. 100
       of 2008 before the High Court was filed by the respondent-State of
       Uttarakhand against the present appellants namely, Constable 907
       Surendra Singh, Constable 192 Surat Singh and Ashad Singh Negi
       (accused Nos. 4, 2 and 3 respectively) challenging the said judgment
       of the trial court by which they had been acquitted of the charges
       under Section 302 read with Section 34 of the IPC.
2.     The High Court dismissed the first set of criminal appeals preferred
       by accused No.1-Jagdish Singh thereby confirming the judgment


1    Hereinafter referred to as the ‘trial court’.
2    For short ‘IPC’.
3    For short ‘Arms Act’
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       and order of conviction and sentence passed by the trial court.
       However, the High Court allowed the Government Appeal preferred
       by the respondent-State of Uttarakhand and set aside the order of
       acquittal qua the appellants herein and convicted them for the offence
       punishable under Section 302 read with Section 34 of the IPC and
       sentenced them to undergo imprisonment for life. Aggrieved by the
       same, the present appeals have been filed by the appellants herein.
3.     Shorn of details, the facts which lead to the present appeals are
       as follows:-
       3.1 On 15th November 2004, the SHO of the Police Station, Rishikesh
           received information that illegal liquor was being smuggled in
           a Maruti Car bearing registration No. DL2CR4766. On receipt
           of such information, at about 8:55 p.m., Head Constable of the
           Police Station Jagdish Singh along with the other accused-
           appellants Constable Surendra Singh, Constable Surat Singh
           and Constable Driver Ashad Singh set out in a silver-coloured
           Indica car to intercept the aforementioned Maruti car. At around
           8:30 p.m., the police personnel spotted a Maruti car near IDPL
           Gate. Constable Ashad Singh, who was driving the car, and
           Head Constable Jagdish Singh attempted to stop the car by
           overtaking it and indicating to the driver of the Maruti car to
           halt. However, when the driver of the Maruti car failed to stop
           his car, Head Constable Jagdish Singh fired a single shot from
           0.38 bore revolver that he was carrying with himself. The said
           shot hit the co-passenger seated in the front seat of the Maruti
           car in her temporal region, eventually leading to her death.
       3.2 As a corollary to this incident, on 16th November 2004, one
           Sanjeev Chauhan lodged a written complaint at Police Station,
           Rishikesh. According to the complaint, the complainant was
           driving down from Roorkee to Rishikesh in his Maruti car on
           15th November 2004. He was in the driving seat while his wife
           Manisha (hereinafter referred to as ‘the deceased’) was sitting
           in the front passenger seat and his sister Km. Bharti and his
           daughter Km. Bhumika were sitting in the rear seats. Having
           started at around 6:45 p.m. from Roorkee, their car crossed
           Shyampur Railway Crossing which was close to IDPL gate
           at about 8:30 p.m. when a silver-coloured Indica car without
           a registration plate overtook the car of the complainant. The
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     Constable 907 Surendra Singh & Anr. v. State of Uttarakhand


           occupants of the Indica car who were dressed in police uniforms,
           indicated to the complainant to stop his car. However, when
           the complainant failed to comply, a bullet came to be fired
           by one of the occupants of the Indica car. The said bullet hit
           the wife of the complainant on her temporal region. Upon the
           occurrence of the incident, a crowd gathered at the spot and
           the complainant was informed by the onlookers that one of the
           occupants of the Indica car was Jagdish Singh who was posted
           as Head Constable at Police Station, Rishikesh. With the aid
           of the assembled bystanders, the complainant took his wife
           to Government Hospital, Rishikesh, where she was declared
           ‘brought dead’.
     3.3 Thereafter, the complainant went to lodge a complaint at Police
         Station Kotwali, Rishikesh where he saw the Indica car parked
         within the premises of the Police Station. He telephoned his
         brother Rajeev who arrived at the Police Station with their uncles
         Jugal Kishore and Vijay Chauhan. On the basis of the complaint
         dictated by the complainant and scribed by Vijay Chauhan, a
         First Information Report being Case Crime No. 455 of 2004
         was registered at the aforesaid Police Station against Head
         Constable Jagdish Singh and other unknown police constables
         for the offence punishable under Section 302 of the IPC.
     3.4 The dead body of the deceased was sent for a post-mortem
         and according to the Post-Mortem Report the cause of death
         was cranio-cerebral damage following a bullet injury.
     3.5 Upon the conclusion of the investigation and on receiving
         permission from the S.S.P., Dehradun to prosecute the accused
         persons, a charge sheet (Ext. Ka-27) was preferred against the
         four accused persons for the offences punishable under Section
         302 read with Section 34 of the IPC. A separate charge sheet
         (Ext. Ka-28) was preferred against Head Constable Jagdish
         Singh for the offence punishable under Section 27(3) of the
         Arms Act.
     3.6 As the case was exclusively triable by the Sessions Court, the
         learned Chief Judicial Magistrate, Dehradun committed the case
         of the four accused persons to the trial court, leading to the
         registration of S.T. No. 50 of 2005. The learned Chief Judicial
         Magistrate, Dehradun further committed the case of accused
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               No.1-Jagdish Singh qua the separate charge sheet before the
               trial court, leading to the registration of S.T. 108 of 2005. Both
               the aforementioned Sessions Trials were consolidated and
               numbered as S.T. No. 50 of 2005.
       3.7 At the conclusion of the trial, the trial court convicted accused
           No.1-Jagdish Singh as aforementioned and sentenced him to
           imprisonment for life while acquitting the three other accused-
           appellants since the prosecution had failed to prove the case
           beyond reasonable doubt insofar as they were concerned.
       3.8 Being aggrieved thereby, accused No.1-Jagdish Singh preferred
           two criminal appeals before the High Court against the order
           of his conviction and sentence. The respondent-State also
           preferred a criminal appeal before the High Court against the
           acquittal of the other accused-appellants.
       3.9 The High Court by the impugned judgment dismissed the
           criminal appeals preferred by accused No.1-Jagdish Singh and
           allowed the criminal appeal preferred by the respondent-State
           of Uttarakhand.
       3.10 Being aggrieved thereby three Criminal Appeals under Section
            379 of the Code of Criminal Procedure, 19734 came to be filed
            before this Court. Criminal Appeal No. 355 of 2013 was filed
            by Constable 907 Surendra Singh and Constable 192 Surat
            Singh. Criminal Appeal No. 788 of 2013 was filed by Ashad
            Singh Negi. Finally, Criminal Appeal Nos. 1425-1426 of 2015
            were filed by Head Constable Jagdish Singh.
4.     This Court by order dated 15th July 2013 admitted Criminal Appeal
       Nos. 355 of 2013 and 788 of 2013 and granted bail to the appellants
       in both the appeals.
5.     During the hearing of the appeals, we were informed that Head
       Constable Jagdish Singh had passed away. Accordingly, on 16th
       January 2025 Criminal Appeal Nos. 1425-1426 of 2015, preferred
       by him, were disposed of as abated.
6.     We have heard Mr. Devadatt Kamat, learned senior counsel appearing
       on behalf of the appellants and Mr. Rajeev Kumar Dubey, learned
       counsel appearing on behalf of the respondent-State.


4    For short ‘Cr.P.C.’
[2025] 2 S.C.R.                                                            245

      Constable 907 Surendra Singh & Anr. v. State of Uttarakhand


7.    Mr. Devadatt Kamat submits that the Division Bench of the High
      Court has grossly erred in convicting the appellants with the aid of
      Section 34 of the IPC. It is submitted that the learned trial judge on
      an elaborate consideration of the evidence had come to a considered
      opinion that insofar as the present appellants are concerned there
      is no evidence to show that the present appellants had shared a
      common intention with the accused No.1-Jagdish Singh. It is submitted
      that the allegation of alleged assault made by Sanjeev Chauhan,
      PW-1 (husband of the deceased) and Km. Bharti, PW-2 (sister-in-
      law of the deceased) in their evidence for the first time before the
      Court cannot be relied on. Insofar as the said alleged assault is
      concerned, it is submitted that though the said incident has taken
      place in public, no independent witness has been examined by the
      prosecution. Learned Senior Counsel relied on the judgment of this
      Court in the case of Gadadhar Chandra v. State of West Bengal5
      in support of his submissions.
8.    It is further submitted that the interference in the judgment of acquittal
      by the learned trial judge would have been warranted by the High
      Court only in the event the view taken by the learned trial judge was
      found to be perverse or impossible. It is submitted that no perversity
      or impossibility could be noticed in the view taken by the learned trial
      judge and as such the interference by the High Court in an appeal
      against the acquittal was totally unwarranted.
9.    As against this, the learned counsel for the respondent-State submits
      that the Division Bench of the High Court has given sound reasons
      for reversing the order of acquittal and as such no interference is
      warranted in the present appeals.
10. We have perused the entire material on record with the assistance
    of the learned counsel for the parties.
11. Recently, in the case of Babu Sahebagouda Rudragoudar and
    others v. State of Karnataka,6 a Bench of this Court to which one
    of us was a Member (B.R. Gavai, J.) had an occasion to consider the
    legal position with regard to the scope of interference in an appeal
    against acquittal. It was observed thus:



5    (2022) 6 SCC 576
6    [2024] 5 SCR 174 : (2024) 8 SCC 149
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       “38. First of all, we would like to reiterate the principles laid
       down by this Court governing the scope of interference
       by the High Court in an appeal filed by the State for
       challenging acquittal of the accused recorded by the
       trial court.
       39. This Court in Rajesh Prasad v. State of Bihar [Rajesh
       Prasad v. State of Bihar (2022) 3 SCC 471 : (2022) 2 SCC
       (Cri) 31] encapsulated the legal position covering the field
       after considering various earlier judgments and held as
       below : (SCC pp. 482-83, para 29)
       “29. After referring to a catena of judgments, this Court
       culled out the following general principles regarding the
       powers of the appellate court while dealing with an appeal
       against an order of acquittal in the following words :
       (Chandrappa case [Chandrappa v. State of Karnataka,
       (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325], SCC
       p. 432, para 42)
            ‘42. From the above decisions, in our considered
            view, the following general principles regarding
            powers of the appellate court while dealing with
            an appeal against an order of acquittal emerge:
                  (1) An appellate court has full power to
                  review, reappreciate and reconsider
                  the evidence upon which the order
                  of acquittal is founded.
                  (2) The Criminal Procedure Code,
                  1973 puts no limitation, restriction
                  or condition on exercise of such
                  power and an appellate court on the
                  evidence before it may reach its own
                  conclusion, both on questions of fact
                  and of law.
                  (3) Various expressions, such as,
                  “substantial and compelling reasons”,
                  “good and sufficient grounds”, “very
                  strong circumstances”, “distorted
                  conclusions”, “glaring mistakes”,
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     Constable 907 Surendra Singh & Anr. v. State of Uttarakhand


                     etc. are not intended to curtail
                     extensive powers of an appellate
                     court in an appeal against acquittal.
                     Such phraseologies are more in the
                     nature of “flourishes of language”
                     to emphasise the reluctance of an
                     appellate court to interfere with
                     acquittal than to curtail the power of
                     the court to review the evidence and
                     to come to its own conclusion.
                     (4) An appellate court, however, must
                     bear in mind that in case of acquittal,
                     there is double presumption in favour
                     of the accused. Firstly, the presumption
                     of innocence is available to him under
                     the fundamental principle of criminal
                     jurisprudence that every person shall
                     be presumed to be innocent unless he
                     is proved guilty by a competent court
                     of law. Secondly, the accused having
                     secured his acquittal, the presumption
                     of his innocence is further reinforced,
                     reaffirmed and strengthened by the
                     trial court.
                     (5) If two reasonable conclusions are
                     possible on the basis of the evidence
                     on record, the appellate court should
                     not disturb the finding of acquittal
                     recorded by the trial court.’ ”
           40. Further, in H.D. Sundara v. State of Karnataka [H.D.
           Sundara v. State of Karnataka (2023) 9 SCC 581 : (2023)
           3 SCC (Cri) 748] this Court summarised the principles
           governing the exercise of appellate jurisdiction while
           dealing with an appeal against acquittal under Section
           378CrPC as follows : (SCC p. 584, para 8)
                “8. … 8.1. The acquittal of the accused further
                strengthens the presumption of innocence;
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                8.2. The appellate court, while hearing an appeal
                against acquittal, is entitled to reappreciate the
                oral and documentary evidence;
                8.3. The appellate court, while deciding an
                appeal against acquittal, after reappreciating
                the evidence, is required to consider whether
                the view taken by the trial court is a possible
                view which could have been taken on the basis
                of the evidence on record;
                8.4. If the view taken is a possible view, the
                appellate court cannot overturn the order of
                acquittal on the ground that another view was
                also possible; and
                8.5. The appellate court can interfere with the
                order of acquittal only if it comes to a finding
                that the only conclusion which can be recorded
                on the basis of the evidence on record was that
                the guilt of the accused was proved beyond a
                reasonable doubt and no other conclusion was
                possible.”
          41. Thus, it is beyond the pale of doubt that the scope
          of interference by an appellate court for reversing the
          judgment of acquittal recorded by the trial court in favour
          of the accused has to be exercised within the four corners
          of the following principles:
          41.1. That the judgment of acquittal suffers from patent
          perversity;
          41.2. That the same is based on a misreading/omission
          to consider material evidence on record; and
          41.3. That no two reasonable views are possible and only
          the view consistent with the guilt of the accused is possible
          from the evidence available on record.”
12. It could thus be seen that it is a settled legal position that the
    interference with the finding of acquittal recorded by the learned trial
    judge would be warranted by the High Court only if the judgment
    of acquittal suffers from patent perversity; that the same is based
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     Constable 907 Surendra Singh & Anr. v. State of Uttarakhand


     on a misreading/omission to consider material evidence on record;
     and that no two reasonable views are possible and only the view
     consistent with the guilt of the accused is possible from the evidence
     available on record.
13. In the instant case, the learned trial judge on the basis of ocular
    testimony of the eyewitnesses has held that the accused No.1-Jagdish
    Singh is guilty of the offence punishable under Section 302/34 IPC
    as well as under Section 27(1) of the Arms Act. Since the appeal of
    the said accused No.1-Jadgish Singh is disposed of as abated, we
    did not go into the findings against the said accused.
14. The learned trial judge while recording the finding of acquittal insofar
    as the present appellants are concerned, has come to the following
    conclusions:
     (i)    That these three accused (appellants herein) were in the car
            and the accused No.1-Jagdish Singh was senior to them, and
            that they were under the command of their senior officer;
     (ii)   Accused Ashad Singh had admitted this aspect and had stated
            that he was driving the car under the orders of his superior officer;
     (iii) The remaining two accused had raised a plea of alibi, which
           was based on certain entries in the General Diary (G.D.)
     (iv) That accused Nos. 2, 3 and 4 (the appellants herein) were not
          named in the report;
     (v)    From the evidence of Rajendra Singh Nagarkoti, P.W.9 as
            well as identification memo Exhibit Ka-13 prepared by the
            Executive Magistrate Bishan Singh Bisht, it was clear that only
            one accused, namely, Ashad Singh could be identified and that
            too only by one witness i.e. by P.W.1;
     (vi) That the identification of the accused by only one witness was not
          sufficient to come to a conclusion of guilt against the accused.
15. Upon consideration of these factors, the learned trial judge came to
    a conclusion that even if it was assumed that the remaining three
    accused had accompanied accused No.1-Jagdish Singh, there was
    no evidence to come to a conclusion that accused Nos. 2, 3 and 4
    (the appellants herein) who were in car with accused No.1-Jagdish
    Singh had shared a common intention with him to fire upon or to
    kill the deceased.
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16. The learned trial judge, therefore, found that the prosecution had
    failed to prove the mental involvement of accused Nos. 2, 3 and 4
    (the appellants herein) with accused No.1-Jagdish Singh beyond the
    shadow of reasonable doubt.
17. However, this well-reasoned finding of the learned trial court has
    been upset by the High Court on the ground that the remaining
    three accused were sitting in the same vehicle along with accused
    No.1-Jagdish Kumar was sufficient to convict them with the aid of
    Section 34 of the IPC.
18. By now it is a settled principle of law that for convicting the accused
    with the aid of Section 34 of the IPC the prosecution must establish
    prior meetings of minds. It must be established that all the accused
    had preplanned and shared a common intention to commit the crime
    with the accused who has actually committed the crime. It must be
    established that the criminal act has been done in furtherance of
    the common intention of all the accused. Reliance in support of the
    aforesaid proposition could be placed on the following judgments of
    this Court in the cases of:
       (i)    Ezajhussain Sabdarhussain and another v. State of Gujarat;7
       (ii)   Jasdeep Singh alias Jassu v. State of Punjab; 8
       (iii) Gadadhar Chandra v. State of West Bengal (supra); and
       (iv) Madhusudan and others v. State of Madhya Pradesh.9
19. In the present case, as observed by the learned trial judge, the
    prosecution has failed to place on record any evidence to show that
    the accused Nos. 2, 3 and 4 (the appellants herein) had common
    intention with accused No.1-Jagdish Singh prior to the accused No.1-
    Jagdish Singh’s shooting at the deceased resulting in her death.
20. In the result, we pass the following order:
       (i)    The appeals are allowed.
       (ii)   The judgment and order of the High Court of Uttarakhand at
              Nainital in Government Appeal No. 100 of 2008 is quashed
              and aside.


7   (2019) 14 SCC 339
8   [2022] 2 SCR 647 : (2022) 2 SCC 545
9   2024 SCC OnLine SC 4035
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     Constable 907 Surendra Singh & Anr. v. State of Uttarakhand


     (iii) The judgment and order dated 6th September 2006 passed by
           the learned Sessions Judge, Dehradun in Sessions Trial No.50
           of 2005 is affirmed.
     (iv) The appellants herein are on bail. Their bail bonds shall stand
          discharged.
     (v)     Pending application(s), if any, shall stand disposed of.

     Result of the case: Appeals allowed.



     †
         Headnotes prepared by: Nidhi Jain