2001 Supreme(SC) 1620

2001(4) Supreme 524
SUPREME COURT OF INDIA
(From Rajasthan High Court)
M.B. Shah and B.N. Agrawal, JJ.
Surendra Singh Rautela @ Surendra Singh Bengali -Appellant
versus
State of Bihar (now State of Jharkhand) -Respondents
Criminal Appeal Nos. 628-629 of 2001
With
Criminal Appeal No. 630 of 2001
And
Criminal Appeal Nos. 1210-1211 of 2001
(Arising out of SLP (Crl.) Nos. 1964-65 of 2001)
Decided on 27-11-2001.
Counsel for the Parties :
For the Appearing Parties : P.S. Mishra, Ranjit Kumar and S.B. Sanyal, Senior Advocates, Himanshu Munshi, L.R. Singh, Advocate (NP), Amboj Kumar Sinha, Varun Goswami, Neeraj Shekhar, Ashok Mathur, Rajesh Pathak, Advocates.

IMPORTANT POINT
High Court was justified in upholding the conviction of appellant Surendra u/s. 302 & 307 IPC but was not justified in enhancing the life sentence awarded u/s. 302 IPC into death penalty. Further, it is permissible in law to try appellant Surendra simultaneously for offences u/s. 302 IPC as well as S. 27(3) of Arms Act.

Headnote:(i) Indian Panel Code, 1860-Sections 302 and 307-Offences under-Appellant Surendra convicted and sentenced to life imprisonment in appeal u/s. 377 Cr. P.C. by State -High Court enhanced sentence of life imprisonment by death penalty-Appeals against to Supreme Court-Whether High Court was right in upholding conviction of appellant? (Yes) -Whether High Court was also right in enhancing life imprisonment to death penalty? (No)-Appeal partly allowed.

       Held : 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. (Para 9)

       (ii) Indian Penal Code, 1860-Sections 302 and 307 r/w 34 and S. 27(1) of Arms Act-Conviction of Appellant Mohd. Anis under-Based on solitary evidence of identification by PW7-Appeal against-Identification not proper-His conviction is liable to be set aside -Appeal allowed.

       Held : 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 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 and the informant could identify the person who was driving the motor cycle on seeing him and on which motor cycle 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 identification of the appellant Mohd. Anis by Ranjan Singh (PW 7) in the test identification parade becomes farce and no reliance can be placed upon his identification 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. (Para 10)

       (iii) Appellant Surendra acquitted of Charge under Section 27(3) of Arms Act though his conviction u/s. 302 and 307 IPC upheld by High Court-State s appeal against-There is error committed by High Court-Final result in all the Appeals-[Cr.P.C. 1973-Section 220(3)].

       Held : As far as appeal preferred on behalf of the State of Jharkhand is concerned, 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 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 of the Penal Code as well as 27(3) of the Arms Act. Learned counsel for the 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 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 transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. Sub section (3) 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 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 Code does constitute an offence punishable under Section 27(3) of the Arms Act. According to the provisions of Sub section (3) of Section 220 of the Code, 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 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. (Para 11)

       Held finally : In the result, Criminal Appeal Nos. 628-29 of 2001 are allowed in part 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 unholding conviction of the appellant under Section 302 of the Penal Code and his conviction and sentence under Section 307 of the Penal Code. Criminal Appeal No.630 of 2001 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 (Crl.) Nos. 1964-65 of 2001 preferred by the State are disposed of with the observations aforementioned. (Para 12)