Full Judgment Text
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CASE NO.:
Appeal (crl.) 650 of 1992
PETITIONER:
SUKHBIR SINGH
Vs.
RESPONDENT:
STATE OF HARYANA
DATE OF JUDGMENT: 20/02/2002
BENCH:
R.P. Sethi & K.G. Balakrishnan
JUDGMENT:
(with Crl.A.No.257 of 2002
J U D G M E N T
SETHI,J.
Appellant Sukhbir Singh (in Crl.A.No.650 of 1992) and 8 other
accused persons were arrested in FIR No.166 dated 22.9.1986 of the
Police Station Ganaur and after investigation charged for the offences
punishable under Sections 302, 307, 326, 324, 323, 148 and 452 read with
Section 149 of the Indian Penal Code by the Additional Sessions Judge,
Sonepat. After completion of the trial, appellant Sukhbir Singh was
convicted under Section 302 IPC and sentenced to imprisonment for life
besides paying a fine of Rs.1000/-. The other accused persons were
convicted under Section 302 read with Section 149 and sentenced to
imprisonment for life besides paying a fine of Rs.1000/- each. All the
accused persons were also convicted under Sections 326/149 and sentenced
to three years Rigorous Imprisonment and fine of Rs.500/- each. Upon
conviction under Section 148 IPC, the respondents were sentenced to
undergo Rigorous Imprisonment for one year and upon conviction under
Sections 324/149 IPC to undergo Rigorous Imprisonment for one year each.
They were also convicted under Sections 323/149 and sentenced to six
months Rigorous Imprisonment. All the substantive sentences were
directed to run concurrently. The appeals filed by the accused persons
were disposed of vide the judgment impugned in these appeals by which
the conviction and sentence of Sukhbir Singh, appellant under Section
302 IPC was upheld. The conviction and sentence of all the other
accused persons under Sections 302/149 was, however, set aside. Their
convictions and sentences under Sections 326, 323, 324 with the aid of
Section 149 IPC was also set aside. Detention already suffered by
accused Pala, Ram Chander, Behari, Baljit, Kidara, Raj, Darya and Tara
was considered as sufficient sentence for their respective convictions
and for their individual acts under Sections 324 and 323 of the IPC.
Pala, accused was further convicted under Section 326 of the IPC and
sentenced to undergo three years Rigorous Imprisonment besides paying a
fine of Rs.500/-. The Court found that the said accused had already
undergone the sentence awarded.
Not satisfied with his conviction and sentence, Accused, Sukhbir
Singh has filed Criminal Appeal No.650 of 1992 whereas the State of
Haryana has filed SLP against the acquittal of the rest of the accused
persons. Leave has been granted in the SLP and as the respondents are
represented, no separate notices have been issued to them. As accused
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Ram Chander died after the judgment of the appellate court, he has not
been impleaded as a party-respondent in the SLP filed by the State. As
Sukhbir Singh convict-accused-appellant has wrongly been added a party-
respondent in the appeal filed by the State, his name is deleted from
the array of the respondents therein.
As the facts of the case and the question of law is common in
both the appeals, they are being disposed of by this common judgment.
The case of the prosecution, as disclosed by Gulab Singh (PW10) in
his report lodged in the police station, is that on 22nd September, 1986
it had rained in Village Tiwari. At about 5-5.15 p.m. when the rain had
not completely stopped and it was still drizzling, Gulab Singh (PW10),
brother of the deceased, had come at his brother’s residence where they
were smoking Hukka and chatting. Ram Niwas, son of Lachhman (deceased)
was sweeping the street in front of his house with a broom and that some
mud splashes stuck Sukhbir Singh at a time when he was passing in the
street. Sukhbir Singh felt offended and is alleged to have abused Ram
Niwas. When Sukhbir Singh and Ram Niwas were abusing each other,
Lachhman separated them and gave two slaps to Sukhbir Singh. Sukhbir
Singh went away declaring that a lesson would be taught to them. After
sometime all the 9 accused persons came at the spot. Sukhbir Singh,
Behari and Ram Chander accused were carrying Bhalas, accused Pala, Tara
and Baljit were carrying Gandasas and accused Kedara, Darya and Raj were
carrying Jailwas. Sukhbir Singh challenged Lachhman to come out so that
a lesson could be taught to him. When Lachhman proceeded towards the
door of his house saying that the matter should not be aggravated and as
soon as he reached the door of his house, accused Sukhbir Singh gave
two thrust blows with his bhala on the upper right portion of his chest.
Lachhman fell down whereafter accused Ram Chander caught hold the legs
of Lachhman and dragged him out in the street. Accused Behari gave a
bhala blow on the left side of the chest of Lachhman. When Murti, wife
of Lachhman tried to rescue her husband, accused Tara dealt a blow with
gandasa which she warded of on her hand. Accused Pala and Baljit also
gave two Gandasa blows each to Lachhman. By that time Jagdev, Kitab
Singh and Azad Singh had also arrived at the spot. Ram Niwas, son of
Lachhman was given a spear blow on the right side of his chest by Ram
Chander while accused Darya gave blow with Jailwa lathiwise on his head.
When Prem Raj, father of the deceased Lachhman and his brother Bikram
tried to rescue Lachhman, accused Pala hurled a gandasa blow on the head
of Pema which was warded of on his left hand. Accused Kidara gave two
blows with jailwa on the on the head of Pema. Accused Raj gave three
jailwa blows lathiwise to Bikram on his right hand. Accused Pala gave
two gandasa blows on the head of Gulab Singh while Accused Baljit gave a
gandasa blow on his left foot. Kitab Singh, Azad Singh and Jagdev Singh
(PWs) then pushed the accused towards their houses. All the injured
persons were removed to the Primary Health Centre, Ganaur. Lachhman
injured succumbed to the injuries and the other injured persons were
given medical treatment. As condition of Ram Niwas was stated to be
serious, he was referred to Civil Hospital, Sonepat for treatment where
Dr.Budh Ram (PW7 ) examined him and further referred him for treatment
to Medical College Hospital, Rohtak. All the accused were arrested by
the police on 25th September, 1986. They made disclosure statements, in
consequence of which Bhalas, Gandasas and Jailwas were recovered. After
completion of the investigation all the accused were committed for trial
before the Court of Additional Sessions Judge, Sonepat. To prove its
case, the prosecution examined 17 witnesses besides the formal witnesses
being the police officials. The reports of Forensic Science Laboratory
Exhs. PR and PS were also tendered in evidence. Out of 17 witnesses
Gulab Singh, Ram Niwas, Jagdev Singh and Azad Singh were stated to be
eye-witnesses to the occurrence.
In his statement recorded under Section 313 Cr.P.C. Sukhbir Singh,
appellant, stated that the complainant-party had placed earth in the
street in front of their house and thereby blocked the flow of the rainy
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water. When he was removing the blockage to facilitate the flow of
water, Lachhman (deceased), Gulab Singh, Bikram, Prem Raj and Ram Niwas
came there and restrained him from removing the earth. When he was
insisting to remove the blockage, accused Behari and Pala also came in
the street. The accused persons were attacked by the complainant-party.
Sukhbir Singh, along with two other accused persons, also caused
injuries to the complainant-party in their self-defence. In their
statements accused Behari and Pala supported the version of Accused
Sukhbir Singh but the remaining accused persons denied their presence or
participation in the occurrence and maintained that they had been
falsely implicated being relations of Accused Sukhbir and Behari.
Accused Tara set up the plea of alibi contending that he remained in the
factory till 5.30 p.m.on the day of occurrence. The accused persons
also examined Dr. Bhupesh Chaudhary (DW1) as a defence witness to prove
the injuries on the person of accused Pala, Sukhbir Singh and Behari.
Assailing the acquittal of the accused by the High Court vide
judgment impugned, Mr.J.P. Dhanda, Advocate submitted that the High
Court committed a mistake of law by ignoring the statements of the eye-
witnesses, namely, Gulab Singh (PW10), Ram Niwas (PW11), Jagdev Singh
(PW12) and Azad Singh (PW13). He further contended that the prosecution
had proved, beyond doubt, that all the accused shared the common object
in furtherance of which they caused the death of Lachhman (deceased) and
inflicted injuries on the PWs and Smt.Murti, wife of the deceased. It
is contended that in view of the conviction by the learned Additional
Sessions Judge of the aforesaid respondents for the commission of
offence under Section 302 read with Section 149 IPC, the High Court was
not justified in disturbing such a finding and holding that the
prosecution had failed to prove the sharing of the common object of all
the accused persons. It was suggested that the manner in which the
accused came on the spot armed with deadly weapons and the nature of the
injuries inflicted upon the person of the deceased and other injured
persons demonstrated in unequivocal terms that the common object of the
unlawful assembly was to commit the offences for which they were
charged.
We have perused the judgment of the trial court and found that no
finding regarding the existence of a common object amongst the accused
was returned. The trial court convicted all the accused persons on
being satisfied that the occurrence had taken place in which all the
accused participated and that as they stood already charged under
Sections 302/149 IPC, they were liable to be convicted for the
commission of the offence with the aid of Section 149 IPC. The High
Court, for the first time, examined the whole evidence to come to a
conclusion that all the accused persons did not share common object and
thus were not liable to be convicted for the commission of the main
offence with the aid of Section 149 IPC. Facing this situation, the
learned counsel appearing for the appellant-State contended that the
evidence led by the prosecution and the attending circumstances of the
case proved the existence of the common object. The argument, if
accepted, can also probabilise the said version of the occurrence but
does not totally negative the probable conclusions arrived at by the
High Court. In its judgment the High Court found that there was no
previous ill-will or enmity between the parties. The occurrence had
taken place only on a trivial issue when Sukhbir Singh got splashes of
mud while Ram Niwas was sweeping the street. The conclusion of the High
Court "consequently it appears that the possibility of the incident
having taken place over the removal of earth from the street by Sukhbir
accused in order to clear the flow of water is more probable", cannot be
completely ruled out. Such a case was projected by the aforesaid
appellant by putting suggestions to the prosecution witnesses and in his
own statement recorded under Section 313 of the Cr.P.C. The High Court
further held that, "the possibility cannot be ruled out that Sukhbir
accused had himself reacted to the situation of Lachhman deceased having
given him slaps and wanted to teach him a lesson after picking up a
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spear from his nearby house. The version of Gulab Singh and Ram Niwas
eye-witnesses that Sukhbir accused mustered help of all the other eight
accused and returned to the spot along with them variously armed is not
acceptable.......". It was then held that, "On the other hand the
possibility of all the accused except Sukhbir having individually
reacted to the situation and came to the rescue of Sukhbir on hearing
altercation between him on the one side and Lachhman deceased and Ram
Niwas on the other cannot be ruled out especially when the perusal of
rough site plan Ex.PZ prepared by Sub Inspector Kewal Ram and the scaled
plan Ex.PX prepared by Chandgi Ram PW9 shows that the houses of Prem Raj
and Bikram injured witnesses are located far of from the spot".
Analysing the statements of prosecution withesses, the court concluded:
"If that is so then it cannot be said by any stretch of imagination that
all the accused had formed an unlawful assembly with the common object
of killing Lachhman deceased or causing injuries to the other
witnesses". The High Court thereafter examined the role played by each
of the accused persons and held them responsible for their individual
acts for which they were convicted and sentenced vide the impugned
judgment. The Court had also found that accused Sukhbir Singh, Pala,
Behari had suffered injuries at the hands of the complainant-party and
not at the hands of the co-accused. Gulab Singh (PW10) and Ram Niwas
(PW11) injured witnesses were held to have suppressed the genesis of the
occurrence by not disclosing true facts. In our opinion, the findings
of the High Court regarding the non existence of the common object
cannot be held to be totally improbable particularly in the absence of a
positive finding in that behalf by the trial court.
It is now well established that this Court does not, by special
leave, convert itself into a court to review evidence for a third time.
However, where the High Court is shown to have failed in appreciating
the true effect and material change in the version given by the
witnesses, in such a situation it would not be right for this Court to
affirm such a decision when it occasions a failure of justice. The
power under Article 136 of the Constitution of India is, no doubt,
extraordinary in amplitude and this Court goes into action only to avert
miscarriage of justice if the existence of perversity is shown in the
impugned judgment. Unless some serious infirmity or grave failure of
justice is shown, this Court normally refrains from re-appreciating the
matter on appeal by special leave. The findings of the High Court have
to be judged by the yardstick of reason to ascertain whether such
findings were erroneous, perverse and resulted in miscarriage of
justice. If the conclusions of the courts below can be supported by
acceptable evidence, the Supreme Court will not exercise its overriding
powers to interfere with such a decision. If two views of an occurrence
are possible the view taken by one of the courts which is favourable to
accused should be given credence. This Court in Ramaniklal Gokaldas Oza
v. State of Gujarat[1976 (1) SCC 6] observed:
"It is a wholesome rule evolved by this Court, which has
been consistently followed, that in a criminal case, while
hearing an appeal by special leave, this Court should not
ordinarily embark upon a reappreciation of the evidence,
when both the Sessions Court and the High Court have agreed
in their appreciation of the evidence and arrived at
concurrent findings of fact. It must be remembered that
this Court is not a regular court of appeal which an accused
may approach as of right in criminal cases. It is an
extraordinary jurisdiction which this Court exercises when
it entertains an appeal by special leave and this
jurisdiction, by its very nature, is exercisable only when
this Court is satisfied that it is necessary to interfere in
order to prevent grave or serious miscarriage of justice.
Mere errors in appreciation of the evidence are not enough
to attract this invigilatory jurisdiction. Or else, this
Court would be converted into a regular court of appeal
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where every judgment of the High Court is a criminal case
would be liable to be scrutinised for its correctness. This
is not the function of this Court."
In Duli Chand v. Delhi Admn.[1975 (4) SCC 649] it was held:
"We have had occasion to say before and we may emphasise it
once again, that this Court is not a regular court of appeal
to which every judgment of the High Court in criminal case
may be brought up for scrutinising its correctness. It is
not the practice of this Court to reappreciate the evidence
for the purpose of examining whether the finding of fact
concurrently arrived at by the High Court and the
subordinate courts is correct or not. It is only in rare
and exceptional cases where there is some manifest
illegality or grave and serious miscarriage of justice that
this Court would interfere with such finding of fact."
The same view was followed by this Court in Ramanbhai Barabhai Patel &
Ors. v. State of Gujarat [2000 (1) SCC 358].
Learned counsel appearing for the appellant-State was not in a
position to satisfy us that the finding returned by the High Court with
respect to the version of the prosecution was not at all probable or
that a conclusions were based upon only on surmises and conjectures or
inadmissible evidence.
In view of the settled position of law, as noticed by us, there
does not appear to be any justification to set aside the judgment of the
High Court in so far as it holds the non-existence of common object
amongst the accused persons and the appeal filed by the State is liable
to be dismissed on this ground alone.
In the facts and circumstances of the case we are also of the
opinion that the prosecution did not succeed in proving the existence of
common object amongst the accused persons to attract the provisions of
Section 149 IPC. An accused is vicariously guilty of the offence
committed by other accused persons only if he is proved to be a member
of an unlawful assembly sharing its common object. There is no dispute
to the legal provision that once the existence of common object of
unlawful assembly is proved, each member of such an assembly shall be
liable for the main offence notwithstanding his actual participation in
the commission of the offence. It is not necessary that each of the
accused, forming the unlawful assembly, must have committed the offence
with his own hands.
Unlawful assembly has been defined under Section 141 of the
Indian Penal Code as under:
"141. Unlawful assembly-- An assembly of five or more
persons is designated as "unlawful assembly", if the common
object of the persons composing that assembly is --
First - To overawe by criminal force, or show of criminal
force, the Central or any State Government or Parliament or
the Legislature of any State, or any other public servant in
the exercise of the lawful power of such public servant; or
Second - To resist the execution of any law, or of any legal
process; or
Third - To commit any mischief or criminal trespass, or
other offence; or
Fourth - By means of criminal force, or show of criminal
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force, to any person to take or obtain possession of any
property, or to deprive any person of the enjoyment of a
right of way, or of the use of water or other incorporeal
right of which he is in possession or enjoyment, or to
enforce any right or supposed right; or
Fifth - By means of criminal force, or show of criminal
force, to compel any person to do what he is not legally
bound to do, or to omit to do what he is legally entitled to
do.
Explanation - An assembly which was not unlawful when it
assembled, may subsequently become an unlawful assembly."
The prosecution in the instant case could not specifically refer
to any of the objects for which the accused are alleged to have formed
the assembly. It appears, from the circumstances of the case, that
after altercation over the splashing of mud on his person and receiving
two slaps on his face from the complainant-party, Sukhbir Singh declared
to teach the complainant-party, a lesson and went home. Immediately
thereafter he alongwith others came on the spot and as held by the High
Court wanted to remove the obstructions caused in the flow of water. As
the common object of the assembly is not discernible, it can, at the
most, be held that Sukhbir Singh intended to cause the fatal blow to the
deceased and the other accused accompanied him for the purposes of
removing the obstruction or at the most for teaching a lesson to
Lachhman and other. At no point of time any of the accused persons
threatened or otherwise reflected their intention to commit the murder
of the deceased. Merely because the other accused persons were
accompanying him when the fatal blows were caused by Sukhbir Singh to
the deceased cannot prove the existence of the common object
specifically in the absence of any evidence of the prosecution in that
behalf. The members of the unlawful assembly can be held liable under
Section 149 of the IPC if it is shown that they knew before hand that
the offence actually committed was likely to be committed in prosecution
of the common object. It is true that the common object does not
require prior concert and a common meeting of mind before the attack.
It can develop even on spot but the sharing of such an object by all
the accused must be shown to be in existence at any time before the
actual occurrence.
The High Court, on appreciation of evidence, has rightly found
that the common object of the accused persons, if any, was not to cause
the death of the deceased and such an intention could be attributed only
to appellant, Sukhbir Singh. The prosecution evidence probabilise the
version of the accused that the occurrence was sudden and unanticipated.
The occurrence, including the quarrel and the causing of fatal blows to
the complainant-party, all took place within such a narrow compass which
renders the story of the prosecution highly improbable. In the facts and
circumstances of the case, it cannot be said that the findings returned
by the High Court were completely improbable. The appeal filed by the
State is not sustainable even on merits.
Appearing for the appellant Sukhbir Singh, Shri U.R. Lalit,
learned Senior Counsel submitted that even if the occurrence is admitted
to have taken place in the manner found by the High Court, his client
cannot be held guilty for the commission of offence punishable under
Section 302 IPC. It is argued that as the occurrence had taken place
without pre-meditation, in a sudden fight in the heat of passion upon a
sudden quarrel, the said appellant is entitled to the benefit of
Exception 4 of Section 300 of the Indian Penal Code. It is further
contended that the finding of the High Court that the appellant has
acted in a cruel or unusual manner cannot be sustained after it is held
that the accused did not have common object because in that case the
appellant Sukhbir Singh is shown to have inflicted two blows on the body
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of the deceased which are neither cruel nor unusual to deprive him the
benefit of aforesaid exception.
To avail the benefit of Exception 4, the defence is required to
probabilise that the offence was committed without pre-meditation in a
sudden fight in the heat of passion upon a sudden quarrel and the
offender had not taken any undue advantage and the offender had not
acted in a cruel or unusual manner. The exception is based upon the
principle that in the absence of pre-meditation and on account of total
deprivation of self-control but on account of heat of passion, the
offence was committed which, normally a man of sober urges would not
resort to. Sudden fight, though not defined under the Act, implies
mutual provocation. It has been held by courts that a fight is not per
se palliating circumstance and only unpre-meditated fight is such. The
time gap between quarrel and the fight is an important consideration to
decide the applicability of the incident. If there intervenes a
sufficient time for passion to subside, giving the accused time to come
to normalcy and the fight takes place thereafter, the killing would be
murder but if the time gap is not sufficient, the accused may be held
entitled to the benefit of this exception.
In the instant case, concededly, there was no enmity between the
parties and there is no allegation of the prosecution that before the
occurrence, the appellant and others had pre-meditated. As noticed
earlier, occurrence took place when Sukhbir Singh got mud splashes on
account of sweeping of the street by Ram Niwas and a quarrel ensued.
The deceased gave slaps to the appellant for no fault of his. The
quarrel appeared to be sudden on account of heat of passion. The
accused went home and came armed in the company of others though without
telling them his intention to commit the ultimate crime of murder. The
time gap between the quarrel and the fight is stated to be few minutes
only. According to Gulab Singh (PW10) when Sukhbir Singh was passing in
the street and some mud got splashed on his clothes, he abused Ram
Niwas. They both grappled with each other whereupon Lachhman (deceased)
intervened and separated them. Accused Sukhbir had abused Lachhman who
gave him two slaps. The said accused thereafter went to his home after
stating that he would teach him a lesson for the slaps which had been
given to him. After some time he, along with other accused persons,
came at the spot and the fight took place. His own house is at a
different place. There is a street in between his house and the house
of Lachhman (deceased). On the northern side of his house, the house of
the appellant is sitauted. Similarly Ram Niwas (PW11) has stated that
after the quarrel the accused went towards his house and within a few
minutes he came back with other accused persons. It is, therefore,
probable that there was no sufficient lapse of time between the quarrel
and the fight which means that the occurrence was "sudden" within the
meaning of Exception 4 of Section 300 IPC.
The High Court has also found that the occurrence had taken place
upon a sudden quarrel but as the appellant was found to have acted in a
cruel and unusual manner, he was not given the benefit of such
exception. For holding him to have acted in a cruel and unusual manner,
the High Court relied upon the number of injuries and their location on
the body of the deceased. In the absence of the existence of common
object, the appellant cannot be held responsible for the other injuries
caused to the person of the deceased. He is proved to have inflicted
two blows on the person of the deceased which were sufficient in the
ordinary course of nature to cause his death. The infliction of the
injuries and their nature proves the intention of the appellant but
causing of such two injuries cannot be termed to be either in a cruel
unusual manner. All fatal injuries resulting in death cannot be termed
as cruel or unusual for the purposes of not availing the benefit of
Exception 4 of Section 300 IPC. After the injuries were inflicted and
the injured had fallen down, the appellant is not shown to have
inflicted any other injury upon his person when he was in a helpless
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position. It is proved that in the heat of passion upon a sudden
quarrel followed by a fight, the accused who was armed with Bhala caused
injuries at random and thus did not act in a cruel or unusual manner.
To support the case of the prosecution, learned counsel for the
State of Haryana relied upon Virender v. State (NCT) of Delhi [IV (2000)
CCR 266 (SC)]. We have perused the aforesaid judgment and find it
totally distinguishable because in that case nothing was shown to the
court that the occurrence had taken place in a sudden fight and in the
heat of passion.
Keeping in view the facts and circumstances of the case, we are of
the opinion that in the absence of the existence of common object
Sukhbir Singh is proved to have committed the offence of culpable
homicide without pre-meditation in a sudden fight in the heat of passion
upon a sudden quarrel and did not act in a cruel or unusual manner and
his case is covered by Exception 4 of Section 300 IPC which is
punishable under Section 304 (Part I) of the IPC. The findings of the
courts below holding the aforesaid appellant guilty of offence of murder
punishable under Section 302 IPC is set aside and he is held guilty for
the commission of offence of culpable homicide not amounting to murder
punishable under Section 304(Part I) of the IPC and sentenced to undergo
Rigorous Imprisonment for 10 years and to pay a fine of Rs.5000/-. In
default of payment of fine, he shall undergo further Rigorous
Imprisonment for one year.
The Criminal Appeal No.257 of 2002 is dismissed and Criminal
Appeal No.650 of 1992 is partly allowed. The Bail Bonds of appellant
Sukhbir stand cancelled and is directed to be taken into custody
forthwith for serving out the remaining part of his sentence.
.......................J.
(R.P. Sethi)
......................J.
(K.G. Balakrishnan)
February 20, 2002