# SUNDER SINGH v. STATE OF UTTARANCHAL - **Citation:** [2010] 11 S.C.R. 927 - **Court:** Supreme Court of India - **Decided:** 2010-09-16 - **Case number:** Criminal Appeal No. 1164 of 2005 - **Bench:** V.S. Sirpurkar, A.K. Patnaik - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sunder-singh-v-state-of-uttaranchal-26248 - **Pages:** 41 ## Headnote A B Penal Code, 1860: s. 302 - Gruesome murders - Accused allegedly put house on fire, when victim family was having dinner inside, and locked the house from outside - C When one victim tried to escape, accused gave sword attack on his neck - All the victims except one succumbed to burn injuries ~ Dying declaration - Surviving victim suffered 70% bum injuries - Accused remaining absconded - Found after 12 years- Trial court convicted accused u/s.302 and awarded o death sentence - High Court affirmed the same - On appeal, held: No reason to interfere with the order of conviction and sentence - The dying declaration was found to be voluntary and truthful - Surviving victim was a natural witness and she herself was injured - The accused was her husband's cousin E thus no scope for mistaken identity moreso when the house was on fire and there was ample light available for identifying the accused - Her evidence was accepted by courts below and was found to be reliable - There were some contradictions and omissions in her evidence but they were not substantial F enough so as to affect the credibility of her evidence - Sentence/Sentencing - Evidence - Dying declaration. Sentence/Sentencing: Death sentence - House set on fire while victim family was having dinner inside - Door bolted from outside - Sword blow given on neck of one victim who G tried to escape - Entire family except one succumbed to burn injures - Accused held guilty of murder - Courts below held that it was rarest of rare case and awarded death sentence - Held: No reason to interfere with the order of sentence - The 927 H 928 SUPREME COURT REPORTS [2010] 11 S.C.R. A offence was committed with pre-meditated mind and in a cruel and cold blooded manner - There was no immediate provocation and all this was only due to previous enmity over property - Out of five persons who lost their life, two were barely 16 and 19 years of age - All of them were without any B arms and were helpless - The accused showed scant respect for the law by absconding for about 12 years- Circumstances of the case not sufficient to mitigate the horrible crime - Pe,nal Code, 1860 - s. 302. Code of Criminal Procedure, 1973: s.313 - Trial courts C ought to be extremely careful about the questions to be put to the accused persons in examination uls.313 - Record must show that meticulous care is taken to put all the incriminating circumstances to the accused - Trial courts sometimes are extremely casual about this aspect - They are D expected to be extremely careful in this behalf - Administration of criminal justice - Criminal trial. Evidence: Contradictory statement - Held: If the witness is not E specifically given an opportunity to explc;iin contradiction, it cannot be taken note of Dying declaration - When a witness making dying declaration survives, the said declaration does not become F substantive evidence and it can only be corroborative evidence of oral testimony. Investigation-Duty of investigating agency - Held: Investigation should not be conducted in casual and careless G or slipshod manner - Incompetent investigation should not result in the accused getting an unfair advantage - Need to give regular police service to distant villages - Policing system. The prosecution case Jras that on the fateful day, the H SUNDER SINGH v. STATE OF UTTARANCHAL 929 victim family was taking dinner on the ground floor of A their house. The accused came there with jerry cans filled with petrol and a burning torch and after pouring petrol inside the room and after setting fire with the torch, closed the door from outside. When one of the victim managed to come out, the accused gave him a sword blow on the B neck. As a result, the victim fell down and died outside the house. The other five family members also sustained severe burn injuries. PW-2 informed the patwari, PW-13, about the incident. When PW-13 reached the spot along with the other witnesses, PW-3 and PW-4, two victims c narrated the incident to them ## Text _Characters 0–39,757 of 81,954. This is a partial read: ask again with offset=39757 for what follows._ [2010] 11 S.C.R. 927 SUNDER SINGH V. STATE OF UTTARANCHAL (Criminal Appeal No. 1164 of 2005) SEPTEMBER 16, 2010 [V.S. SIRPURKAR AND A.K. PATNAIK, JJ.] A B Penal Code, 1860: s. 302 - Gruesome murders - Accused allegedly put house on fire, when victim family was having dinner inside, and locked the house from outside - C When one victim tried to escape, accused gave sword attack on his neck - All the victims except one succumbed to burn injuries ~ Dying declaration - Surviving victim suffered 70% bum injuries - Accused remaining absconded - Found after 12 years- Trial court convicted accused u/s.302 and awarded o death sentence - High Court affirmed the same - On appeal, held: No reason to interfere with the order of conviction and sentence - The dying declaration was found to be voluntary and truthful - Surviving victim was a natural witness and she herself was injured - The accused was her husband's cousin E thus no scope for mistaken identity moreso when the house was on fire and there was ample light available for identifying the accused - Her evidence was accepted by courts below and was found to be reliable - There were some contradictions and omissions in her evidence but they were not substantial F enough so as to affect the credibility of her evidence - Sentence/Sentencing - Evidence - Dying declaration. Sentence/Sentencing: Death sentence - House set on fire while victim family was having dinner inside - Door bolted from outside - Sword blow given on neck of one victim who G tried to escape - Entire family except one succumbed to burn injures - Accused held guilty of murder - Courts below held that it was rarest of rare case and awarded death sentence - Held: No reason to interfere with the order of sentence - The 927 H 928 SUPREME COURT REPORTS [2010] 11 S.C.R. A offence was committed with pre-meditated mind and in a cruel and cold blooded manner - There was no immediate provocation and all this was only due to previous enmity over property - Out of five persons who lost their life, two were barely 16 and 19 years of age - All of them were without any B arms and were helpless - The accused showed scant respect for the law by absconding for about 12 years- Circumstances of the case not sufficient to mitigate the horrible crime - Pe,nal Code, 1860 - s. 302. Code of Criminal Procedure, 1973: s.313 - Trial courts C ought to be extremely careful about the questions to be put to the accused persons in examination uls.313 - Record must show that meticulous care is taken to put all the incriminating circumstances to the accused - Trial courts sometimes are extremely casual about this aspect - They are D expected to be extremely careful in this behalf - Administration of criminal justice - Criminal trial. Evidence: Contradictory statement - Held: If the witness is not E specifically given an opportunity to explc;iin contradiction, it cannot be taken note of Dying declaration - When a witness making dying declaration survives, the said declaration does not become F substantive evidence and it can only be corroborative evidence of oral testimony. Investigation-Duty of investigating agency - Held: Investigation should not be conducted in casual and careless G or slipshod manner - Incompetent investigation should not result in the accused getting an unfair advantage - Need to give regular police service to distant villages - Policing system. The prosecution case Jras that on the fateful day, the H SUNDER SINGH v. STATE OF UTTARANCHAL 929 victim family was taking dinner on the ground floor of A their house. The accused came there with jerry cans filled with petrol and a burning torch and after pouring petrol inside the room and after setting fire with the torch, closed the door from outside. When one of the victim managed to come out, the accused gave him a sword blow on the B neck. As a result, the victim fell down and died outside the house. The other five family members also sustained severe burn injuries. PW-2 informed the patwari, PW-13, about the incident. When PW-13 reached the spot along with the other witnesses, PW-3 and PW-4, two victims c narrated the incident to them. The dying declaration of two victims were recorded by the magistrate. One of the victim who gave dying declaration died while the other who suffered 70% burn survived. The injured victims were rushed to the hospital. Some victims died on the way 0 and some in the hospital. The accused remained absconded and was found after 12 years. the matter was then committed to Sessions. The trial court convicted the accused under Sections 302, 307 and 436 IPC on the basis of the evidence of PWE: 1, the dying declaration and the other substantive evidence and awarded death sentence. The High Court confirmed the conviction and the sentence. The instant appeal was filed challenging the conviction and the sentence. F Dismissing the appeal, the Court HELD: 1.1. PW-1 was a natural witness and there could be no dispute about her presence on the spot. She was also an injured witness having suffered 70% burns. G Considering the overall evidence which was accepted by the trial court arid the High Court, PW-1 was found reliable and the courts below committed no error in accepting her evidence. There were undoubtedly some contradictions H 930 SUPREME COURT REPORTS [2010] 11 S.C.R. A and omissions in her evidence but they were not substantial enough so as to affect the credibility of her evidence. Unless a contradiction is proved by· putting it to the person who records the original statement, such contradiction is of no consequence. If the witness is not B specifically given an opportunity to explain suc:h contradiction, it cannot be taken note of. The seizurepanchnamas duly proved by PW-4 showed that there were three jerry cans found which were cut from the above, and as such, were open and they were smelling c of petrol. Therefore, there can be no dispute that actually the accused had carried the three jerry cans full of petrol and the witness had seen the accused pouring petrol from one of them. It can also be that the accused might have utilized the two jerry cans in sprinkling. the petrol 0 on the roof from outside and then opening the door, threw the petrol from the third jerry can remaining with him. The witness had after all seen the three jerry cans being presented in the court and had, therefore, tried to improve upon the story. However, if the three jerry cans were actually found by PW-13 immediately on the spot in E a semi-burnt condition, the so-called contradiction loses all its rigor. PW-1 was very candid when she admitted before the court that she had not stated that her husband was cut by the accused and that she had not, therefore, referred to the pistol in her statement. She was also F candid in saying that she had not seen the accused assaulting her husband. She then asserted that the accused assaulted her husband on his neck only once. She also asserted that besides the accused, she did not see anyone else on the spot. All this suggested her G truthfulness. She did not implicate anybody else than the accused. Therefore, the fact that the accused was alone and further that one of the victim after opening the door, ran out and was thereafter immediately found cut would lead to the only inference that it was the accused alone H SUNDER SINGH v. STATE OF UTTARANCHAL 931 who assaulted him. At that time, the whole house was A burning. The witness explained that the other people came and extinguished the fire, otherwise the whole house would have burnt. There was, therefore, enough light for the witness to see the accused. There was nothing to disbelieve this witness on account of the soB called contradictions. In fact, the presence of PW-1 alongwith the other victims on the spot, was not challenged. Had she not been present there, she would not have suffered 70% burns. She thus had the best opportunity to watch everything. She herself had lost all C her kith and kin including her husband and, therefore, she would not be interested in screening the real accused. She cannot be viewed as the interested person. In fact, the doctor, PW-12, in his first medical statement specifically mentioned that she was fully conscious 0 when she was examined at the hospital. Therefore, it cannot be said that she was not able to see and comprehend. [Paras 11, 12, 13] [943-E-F-H; 944-A-B; 945B-E; 946-D-H; 947-A-H] 1.2. There can be no dispute that the dying E declaration can be made a basis of conviction. For basing the conviction on the dying declaration, the declaration must pass all the tests of voluntariness, the fit condition of mind of the declarant and the declarant was not being influenced by any other factors. The critical examination. F of the dying declaration showed that it was voluntary, truthful and uninfluenced by any other factor. The only criticism against this dying declaration was that the magistrate had not got it certified by the doctor to the effect that the witness was in a fit state of mind to make G the dying declaration. However, the magistrate (PW-9) very specifically asserted that he had obtained the opinion of the doctor,. but there was no crossexamination at all on this very vital aspect. Therefore, the assertion that he had asked the doctor and was H 932 SUPREME COURT REPORTS [2010) 11 S.C.R. A convinced that the injured was in a fit position to make a dying declaration had gone unchallenged. This witness very specifically stated that he completed all the formalities and had taken all the cautions. After examining all the circumstances, particularly, the evidence of the B magistrate, the dying declarations of PW-1 and the other victim did pass the test of credibility. There can be no dispute that when a witness making a dying declaration survives, the said dying declaration does not remain substantive evidence. Of course, the dying declaration C of PW-1 cannot be substantive evidence and it can only be corroborative evidence of oral testimony since she survived. However, the evidence of the other declarant did become substantive evidence and wholly reliable. The trial court and the appellate court committed no error 0 in relying on that dying declaration. [Paras 12, 18, 19) [945-E-H; 946-A-C; 950-D-F; 951-B-D] Lax man v. State of Maharashtra 2002 (6) SCC 710 - relied on. E Shanmugham @ Ku/andaivelu v. State of Tamil Nadu (2002) 10 SCC 4; P. V. Radhakrishnan v. State of Karnataka. (2003) 6 SCC 443; Ramprasad v. State of Maharashtra 1999 (5) sec 30 - referred to. 1.3. The assertion of PW-3 in the examination-in-chief F that one of the victim had told him that when they were having their food at that time the accused had poured the petrol and had put the house on fire, was not challenged In the cross-examination. The only challenge in the cross-examination was that he had himself not seen the G incident. The evidence of this witness also thus went unchallenged. Though the Panchnamas on which these two witnesses have put their signatures, were put to the accused, however, this fact of oral dying declaration to both of them was not put to the accused. It is really a H matter of concern that even the trial Judge did not frame SUNDER SINGH v. STATE OF UTIARANCHAL 933 the question in Section 313 Cr.P.C. examination A specifically putting the names of these two witnesses. Thereby a very important circumstance is lost. The trial courts ought to be extremely careful about the questions to be put to the accused persons in examination under Section 313 Cr.P.C. Record must show that meticulous B care is taken to put all the incriminating circumstances to the accused. It is found that the trial courts sometimes are extremely casual about this aspect and fail to put all the incriminating circumstances to the accused. The trial courts are expected to be extremely careful in this behalf. c {Para 21] [951-G-H; 952-A-G] ' 1.4. Nothing was brought in the cross-examination of the doctors excepting the suggestion to practically all of them that if there was an accidental fall of a can containing oil or petrol in the hearth, there could be a D possibility of the witnesses receiving burn injuries. Such possibility was merely an imagination and there was no material whatsoever to see any such possibility. This is all the more true considering that one of the victim was given a blow by a sword resulting in his instantaneous E death. The defence thus could not get any advantage from the medical evidence. [Para 23] [954-B-C] 2. The investigation in the instant case was not up to the mark. In the distant hilly areas in the State of Uttarakhand, the investigation is conducted by village police through a Patwari who is the lowest officer in the revenue department. Much more could have been done F in the case. Some of the victims were alive when the investigating officer allegedly reached the spot as per his G own evidence. He could have recorded their dying declarations. That was not done. Even the FSL report was not obtained and filed. The trial was started only after the arrest of the accused after 12 years. All this suggested that the investigation was conducted in a very casual and H 934 SUPREME COURT REPORTS [2010] 11 S.C.R. A careless manner. Same was the story of prosecution. The prosecuting agency did not even bother to look into the questions before they were asked to the accused in his Section 313 Cr.P.C. examination. Merely because this heinous offence took place in the remote corner of B District Bageshwar which at the time when the offence took place was Almora District, it did not mean that the investigating agency could do some slipshod investigation and thereafter the prosecution could be allowed to be equally casual as it appears to have been C in conducting the prosecution. This also speaks about the duty of the trial court judge who cannot be a mere spectator to what goes on in the name of the trial. The trial judge has to control the trial by active application of mind. A time has come when the village police system 0 prevalent in the State of Uttaranch~I in respect of distant areas should be changed and the distant villagers be given the protection and services of the regular police. It is really strange that the four Districts which are in the plains have had advantage of the police system while in the remaining Districts, the distant part of those Districts E are deprived of a police system. Such deprivation undoubtedly results in affecting the law and order situation, the detection of crimes and the protection of the poor villagers. In fact effective policing is the need of the whole society, urban as also rural. However, all F these factors have not prejudiced the accused. Even with these factors, the prosecution fully proved the heinous offence committed by him. The incompetent investigation should not result in the accused getting any G H unfair advantage. [Para 24] [954-D-H; 955-A-E] 3. As regards the sentence, it must be said that the instant case is one of the rarest of the rare cases, in which the whole family was wiped out. Five persons lost their life while the sixth person, a helpless lady, who is SUNDER SINGH v. STATE OF UTTARANCHAL 935 now left to be the only member of the family, has to live A her life with 70% burn injuries. The murder was committed in a cruel, grotesque and diabolical manner. The act of pouring petrol when all the family members were together in a room and setting it to fire and then closing the door from outside was the most fouled act, B by which the accused actually intended to burn all the persons inside the room. Barring PW-1, everyone in that room was burnt. When one of the victim somehow, was able to open the room and come out, even he was not spared and almost beheaded by the accused. It is clear c that the accused had done this with pre-meditated and cold-blooded mind, as he had taken the trouble of carrying petrol to his own cousin's house. He was also carrying a sword, and probably prepared himself to fire on the complainant party, as a pistol with two bullets in it was also found on the spot. The accused had shown extreme depravity of mind in causing a sword blow on the neck of the victim who himself was burnt and was trying to escape. A murder by burning, by itself, would be a very cruel act. The agony caused to the dying victims because of their burn injuries would be enormous. Again, when it is seen that there was no immediate provocation to the accused and all this only was on account of the enmity going on in respect of the family lands, the enormousness of the crime is increased ' by many folds. Out of the five persons who lost their life, two were barely 16 and 19 years old. Their life was nipped D E F in the bud. All the victims were without any arms and were helpless. They could not have even saved themselves and did succumb to the burn injuries. The balance sheet of the aggravating circumstances thus G exceeds the mitigating circumstances. In fact, there was no mitigating circumstance in this case. The accused showed scant respect for the law by remaining absconding for about 12 years and only because of that H 936 SUPREME COURT REPORTS [2010] 11 S.C.R. A he could not be brought to books. It is only his accidental arrest and being lodged in another jail that the prosecuting agency was able to prosecute him. The age is not on the side of the accused. Insofar as the other circumstance of the accused remaining under the B shadow of death sentence right from 2004 is concerned, the circumstance, by itself, is not sufficient to mitigate his horrible crime. [Para 35] [965-D-H; 966-A-H] Bachan Singh v. State of Punjab AIR 1980 SC 898; C Machhi Singh & Ors. v. State of Punjab AIR 1983 SC 957; Devender Pal Singh v. State of NCT of Delhi AIR 2002 SC 1661; Atbir v. Govt. of NCT of Delhi JT 2010 (8) SC 372; Ravji Alias Ram Chandra v. State of Rajasthan 1996 (2) SCC 175; Dhananjoy Chatterjee v. State of West Bengal 1994 (2) SCC 220; State of UP. v. Dharmendra Singh & Anr. 1999 D (8) SCC 325; Triveniben v. State of Gujarat 1988 (4) SCC 574; Sushi/ Murmu v. State of Jharkhand AIR 2004 SC 394; Ediga Anamma v. State of A.P. AIR 1974 SC 799; Gurdev Singh & Anr. v. State of Punjab with Piara Singh & Anr. v. State of.Punjab AIR 2003 SC 4187; Rajendra Prasad v. State E of Uttar Pradesh 1979 (3) SCC 646; A. Devendran v. State of Tamil Na du 1997 ( 11) SCC 720; Kumudi Lal v. State of UP. 1999 (4) SCC 108; Om Prakash v. State of Haryana 1999 (3) SCC 19; Mohd. Chaman v. State (NCT of Delhi) 2001 (2) SCC 28; Lehna v. State of Haryana 2002 (3) SCC F 76; Haru Ghosh v. State of West Bengal 2009 (15) SCC 551; Dilip Premnarayan Tiwari & Anr. v. State of Maharashtra etc. 2010 (1) SCC 775; Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka AIR 2008 SC 3040referred to. G Case Law Reference: 1999 (5) sec 30 referred to Para 12 2002 (6) sec 11 o relied on Para 18 H (2002) 1 o sec 4 referred to Para 18 SUNDER SINGH v. STATE OF UTTARANCHAL 937 (2003) 6 sec 443 referred to Para 18 A AIR 1980 SC 898 referred to Para 30, 32 AIR 1983 SC 957 referred to Para 30 AIR 2002 SC 1661 referred to Para 30 B JT 2010 (8) SC 372 referred to Para 30, 32, 35 1996 (2) sec 115 referred to Para 31 1994 (2) sec 220 referred to Para 31 c 1999 (8) sec 325 referred to Para 31 1988 (4) sec 574 referred to Para 31 AIR 2004 SC 394 referred to Para 32 AIR 1974 SC 799 referred to . Para 32 D AIR 2003 SC 4187 referred to Para 33 1979 (3) sec 646 referred to Para 33 1997 (11) sec 120 referred to Para 33 E 1999 (4) sec 108 referred to Para 33 1999 (3) sec 19 referred to Para 33 2001 (2) sec 28 referred to Para 33 F 2002 (3) sec 76 referred to Para 33 2009 (15) sec 551 referred to Para 34 2010 (1) sec 775 referred to Para 34 AIR 2008 SC 3040 referred to Para 34 G CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1164 of 2005. From the Judgment and order dated 20.07.2005 of the H 938 SUPREME COURT REPORTS [2010] 11 S.C.R. A High Court of Uttaranchal at Nainital in CRLR No. 7 of 2004 and CRLJA No. 249 of 2004. Y.P. Singh, C. Siddharth and P. Purudura for the Appellant. S.S. Shamshery and Jatinnder Kumar Bhatia for the B Respondent. The Judgment of the Court was delivered by V.S. SIRPURKAR, J. 1. Appellant herein challenges the C judgment of the High Court affirming the judgment passed by the Sessions Court. The Sessions Judge convicted the appellanUaccused Sunder Singh for offences under Sections 302, 307 and 436, Indian Penal Code (IPC). While he was awarded the death sentence along with a fine of Rs.5,000/- D and in default to suffer further rigorous imprisonment for one year, he was given the punishment of seven years along with fine of Rs. 5,000/- and in default to suffer further rigorous imprisonment for one year separately on the other two counts. 2. The incident in this case had taken place on 30 .6 .1989 E in village Mahargheti, Patwari Circle Dangoli in the newly formed District Bageshwar (which was part of District Almora at the time of incident). In this ghastly incident, Pratap Singh, his wife Nandi Devi, his elder son Balwant Singh (aged about 28 years), another son Prem Singh (aged about 19 years), F daughter Kamla (aged about 16 years) lost their lives while I wife of Balwant Singh, namely, Vim la, Devi (PW-1) sustained I grievous burn injuries. Five victims who lost their lives including Balwant Singh were roasted alive atld 1died either on the spot or while being taken to the hospital or in the hospital. Balwant G Singh, however, was almost beheaded while he also suffered the burn injuries. The prosecution alleged that this incident took place at about 10 p.m. when all the victims were taking their dinner in the ground floor room of their house. The appellanUaccused came there with jerry can containing petrol H and burning torch and threw the petrol in the room and ,after SUNDER SINGH v. STATE OF t.JTTARANCHAL 939 [V.S. SIRPURKAR, J.] --°'~ setting fire by torch, he shut the door of the room. Though A Balwant Singh was in flames he managed to come out of the room by opening the door. However, as soon as he came out of the room, the accused who was still waiting there gave him a sword blow on the neck because of which he fell down dead out side the house. The other five family members who B sustained severe bums also died barring Vimla Devi who alone survived. Nandi Devi died on the way to the Primary Health Centre at Baijnath while Pratap Singh also died there itself. l