Page 1

   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.

1

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.

2

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

3

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

4

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

5

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

6

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.”

7

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.  

8

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

9

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 Another1,  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.

1 (2010) 2 SCC 333

10

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.”

11

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.

12

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

13

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  IPC2.   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 IPC3 and does not amount to murder.

2 “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.”

3 “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

14

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.”

15

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.

16

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.

17

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

18