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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