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CASE NO.:

Appeal (civil) 7769 of 1995

PETITIONER:

UNION OF INDIA & ORS.

Vs.

RESPONDENT:

SUNIL KUMAR SARKAR

DATE OF JUDGMENT: 28/02/2001

BENCH:

S.P.Bharucha, N.S.Hegde, Y.K.Sabharwal

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

SANTOSH HEGDE, J.

A General Court Martial (GCM) under the provisions of

the Army Act, 1950 was initiated against the respondent

herein for certain allegations of defrauding the Border Road

Organisation (the Organisation) in which the respondent

was working as a Superintendent, Buildings & Roads,

Grade-II. On the conclusion of the said GCM proceedings, he

was found guilty of some of the charges framed against him

and was sentenced to undergo R.I. for one year which

sentence under the Army Act was subject to confirmation by

the higher authorities under Chapter XII of the Army Act.

Pursuant to the said sentence, the respondent was taken into

custody on the very day i.e. 28th July, 1976. When the

conviction and sentence was taken up by the confirming

authority, same was remanded back to the GCM for

reconsideration. On remand, the GCM again heard the

respondents counsel and modified its earlier order whereby

while finding the respondent again guilty reduced the

earlier sentence of R.I. for one year to that of six

months. This order was also subject to confirmation.

However, in view of the fact that the respondent who by

virtue of the first order was undergoing the sentence, had

completed the period of six months by that time, the GCM

directed the release of the respondent from custody on 28th

January, 1977. The second order of conviction was confirmed

by the authority concerned on 26.3.1977. In the meantime,

the authorities acting under Rule 19 of the Central Civil

Services (Classification, Control and Appeal) Rules, 1965

(for short the Central Rules) with a view to initiate

disciplinary proceedings issued a show cause notice dated

26.3.1977 calling upon him to show cause why suitable order

be not passed against him. The respondent submitted his

reply to the said show cause notice. The authority on the

conclusion of the said departmental inquiry under the said

Rule dismissed the respondent from service. The appeals and

the review petitions filed by the respondent to the

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appropriate authorities against his conviction by the GCM as

well as his dismissal under the Central Rules came to be

dismissed. The respondent challenged these orders of his

conviction under the Army Act as well as his dismissal under

the Rules by way of a writ petition before a learned Single

Judge of the Calcutta High Court who, after hearing the

parties, noticed certain defects in the orders impugned

before him, hence, allowed the writ petition and issued the

following directions:

The Chief Engineer, Project Sevak is directed to give

a personal hearing to the petition and after such hearing he

shall pass a fresh order either confirming the earlier order

dated the 23rd October, 1978, or passing such an order as he

may deem fit and proper. The fresh order must contain the

reasons. Similarly I direct the Director- General of Border

Roads to give a personal hearing to the petitioner in

connection with his post-confirmation petition and pass a

fresh order either confirming the earlier order dated the

23rd March, 1979, or passing a fresh order as he may think

fit and proper. The fresh orders must contain the reasons.

Against the said judgment of the learned Single Judge,

none of the respondents before the learned Single Judge, who

are now appellants before us, preferred any appeal. Hence,

the said order has become final so far as they are

concerned. The respondent, however, not being satisfied,

preferred an appeal before the Division Bench of the said

High Court and the High Court as per its impugned order

allowed the said appeal holding that the Court Martial

proceedings as well as the disciplinary proceedings

initiated by the appellants were vitiated by the fact that

the authorities had chosen to keep the respondent under

suspension without there being any reason therefor, and that

the respondent was taken into custody immediately after the

pronouncement of the sentence by the GCM without the said

order being confirmed as required by the Army Act. The

Division Bench also found against the disciplinary authority

for having passed the impugned order of dismissal solely

based on the finding of the Court Martial proceedings which,

according to the Division Bench, showed that the

disciplinary authority had a pre-determined mind. It also

observed that the findings of the Court Martial proceedings

were not based on the material on record and amounted to a

perverse order. It is against this order of the Division

Bench dated 30.3.1994 that the appellants are before us in

this appeal. We have heard learned counsel for the parties,

and perused the records. As noticed above, one of the

grounds relied upon by the Division Bench to pass the

impugned order was that the respondent was kept under

suspension by the disciplinary authority after the GCM

proceedings were over and while he was still in custody.

According to the Division Bench, this was contrary to Rule

10 of the Central Rules inasmuch as certain condition

precedent required under the Rule was not existing when the

order of suspension was made. It seems that the Division

Bench was of the opinion that once a person is in custody

the question of keeping him under suspension does not arise.

We do not agree with this opinion of the Division Bench

because the Division Bench failed to notice that the

respondent was due to be released on 27.1.1977 after serving

the six months R.I. imposed on him. After his release in

the normal course, he was entitled to claim reinstatement in

service unless departmental proceedings were initiated

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against him for the misconduct for which he was convicted.

Therefore, the authority thought it necessary to keep the

respondent under suspension, hence, the orders under Rule 10

of the Central Rules were issued keeping the respondent

under suspension. Rule 10(1)(a) of the Central Rules

empowers the appointing authority to place a Government

servant under suspension if an inquiry is either being

conducted against him or is contemplated against him. In

the present case, a disciplinary authority had decided to

initiate the disciplinary proceeding against the respondent

and pursuant to the said decision and in exercise of the

power vested in him by Rule 10(1)(a) of the Central Rules,

the respondent was kept under suspension. Therefore, the

concerned authority was well within its statutory power to

keep the respondent under suspension and, in our opinion,

the High Court fell in error in finding fault with the said

decision on the ground that there was no need to keep the

respondent under suspension when he is undergoing a sentence

of imprisonment. The next finding of the Division Bench

that the GCM erred in taking the respondent into custody

immediately after it imposed the sentence without the said

order of sentence being confirmed by the higher authority is

also contrary to the provisions of the Army Act. Section

167 of the said Act mandates that when a person is sentenced

by a Court Martial his sentence shall be reckoned to

commence on the day on which the original proceedings were

signed by the Presiding Officer whether such sentence is

revised or not. In the instant case, the Court Martial

pronounced the sentence on 28.7.1976 and the respondent was

taken into custody on the same day which was in accordance

with Section 167 of the Army Act. The Division Bench, in

our opinion, did not notice this provision of the Army Act

when it found fault with the GCM for taking the respondent

into custody before the sentence imposed by it was confirmed

by the confirming authority. The Division Bench also found

fault with the order of dismissal passed by the disciplinary

authority on the ground that the same was solely based on

the conviction suffered by the respondent in the Court

Martial proceeding. The court in this regard held that the

disciplinary authority had a pre-determined mind when he

passed the order of dismissal. Here again, in our opinion,

the Division Bench did not take into consideration Rule 19

of the Central Rules which contemplates that if any penalty

is imposed on a Government servant on his conviction in a

criminal charge, the disciplinary authority can make such

order as it deems fit (dismissal from service is one such

order contemplated under Rule 19) on initiating disciplinary

proceedings and after giving the delinquent officer an

opportunity of making a representation on the penalty

proposed to be imposed. As a matter of fact, this type of

disciplinary procedure is contemplated in the Constitution

itself as could be seen in Article 311(2)(a). Rule 19 of

the Central Rules is in conformity with the above provisions

of the Constitution. This, as we see, is a summary

procedure provided to take disciplinary action against a

Government servant who is already convicted in a criminal

proceeding. The very foundation of imposing punishment

under Rule 19 is that there should be a prior conviction on

a criminal charge. Therefore, the question of having a

pre-determined mind does not arise in such cases. All that

a disciplinary authority is expected to do under Rule 19 is

to be satisfied that the officer concerned has been

convicted of a criminal charge and has been given a show

cause notice and reply to such show cause notice, if any,

should be properly considered before making any order under

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this Rule. Of course, it will have to bear in mind the

gravity of the conviction suffered by the Government servant

in the criminal proceedings before passing any order under

Rule 19 to maintain the proportionality of punishment. In

the instant case, the disciplinary authority has followed

the procedure laid down in Rule 19, hence, we cannot agree

with the Division Bench that the said disciplinary authority

had any pre-determined mind when it passed the order of

dismissal. The Division Bench next came to the conclusion

that the finding arrived at by the GCM is perverse. In

regard to this finding, this is what the court has observed

in its judgment:

It also appear to us that the decision arrived at by

the G.C.M. was arrived at without consideration of evidence

and as such the same are perverse. There has been no proper

consideration of relevant facts and materials and no

reasonable man acting bona fide and with proper

consideration could have come to the impugned finding,

rendering such decision/conviction and all proceedings

subsequent thereto to be void ab initio.

A perusal of the judgment impugned clearly shows that

its finding that the decision of the GCM was arrived at

without consideration of evidence is not factually supported

by any material and is only an ipse dixit of the court. The

Division Bench has not pointed out what is the evidence that

has not been considered by the GCM and how its findings are

perverse. In the absence of these basic facts, we are

unable to agree with the Division Bench that the findings of

the GCM on facts is either not based on material on record

or is perverse. Before concluding we must point out that

during the course of arguments, a doubt was raised as to the

maintainability of the concurrent proceedings initiated

against the respondent by the authorities. The respondent

in this case has been punished for the same misconduct both

under the Army Act as also under the Central Rules. Hence,

a question arises whether this would tantamount to double

jeopardy and is in violation of Article 20 of the

Constitution of India. Having considered the arguments

addressed in this behalf, we are of the opinion that so far

as the concurrent proceedings initiated by the Organisation

against the respondent both under the Army Act and the

Central Rules are concerned, they are unexceptionable.

These two proceedings operate in two different fields though

the crime or the misconduct might arise out of the same act.

The Court Martial proceedings deal with the penal aspect of

the misconduct while the proceedings under the Central Rules

deal with the disciplinary aspect of the misconduct. The

two proceedings do not overlap. As a matter of fact,

Notification No.SRO-329 dated 23.9.1960 issued under the

Central Rules and under sub-sections (1) and (4) of Section

4 of the Army Act makes this position clear. By this

notification, the punishments that could be meted out under

the Central Rules have been taken out of the purview of the

Court Martial proceedings under the Army Act. We further

find support for this view of ours in the judgment of this

Court in R. Viswan & Ors. v. Union of India & Ors. (AIR

1983 SC 658). As noticed above, in view of the fact that

the appellants have not challenged the directions issued by

the learned Single Judge in the writ appeal, the same remain

undisturbed by this judgment while we allow this appeal and

quash the judgment of the Division Bench impugned before us.

No order as to costs.

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1

12

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.821 OF 2000

Suresh and anr. Appellant

:versus:

State of U.P. Respondent

WITH

CRIMINAL APPEAL NO. 160 OF 2001

State of U.P. Appellant

:versus:

Pavitri Devi Respondent

J U D G M E N T

THOMAS, J.

Section 34 of the Indian Penal Code is a very commonly

invoked provision in criminal cases. With a plethora of

judicial decisions rendered on the subject the contours of

its ambit seem well neigh delineated. Nonetheless, when

these appeals were heard a two-judge Bench felt the need to

make a re-look at the provision as to whether and if so to

what extent it can be invoked as an aid in this case. Hence

these appeals were heard by a larger Bench.

In one of the appeals A-1 Suresh and his brother-in-law

A-2 Ramji are fighting their last chance to get extricated

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from the death penalty imposed on them by a Sessions Court

which was confirmed by a Division Bench of the High Court.

In the other appeal Pavitri Devi, the wife of A-1 Suresh

(also sister of A-2 Ramji) is struggling to sustain the

acquittal secured by her from the High Court in reversal of

the conviction for murder ordered by the Sessions Court with

the aid of Section 34 IPC.

On the night of 5.10.1996 when Ramesh (brother of

appellant Suresh) and his wife and children went to bed as

usual they would have had no foreboding that it was going to

be the last night they were sleeping on this terrestrial

terrain. But after they, in their sleep, crossed the

midnight line and when the half crescent moon appeared with

its waned glow above their house the night turned red by the

bloodiest killing spree befallen the entire family. The

motely population of that small house were whacked to pieces

by armed assailants, leaving none, but a single tiny tot,

alive. The sole survivor of the gory carnage could have

seen what happened inside his sweet home only in the light

which itself turned carmine. He narrated the tale before

the Sessions Court with the visible scars of the wounds he

sustained on his person.

That infant witness (PW-3 Jitendra) told the trial

court that he saw his uncle (A-1 Suresh) in the company of

his brother-in-law (A-2 Ramji) acting like demons, cutting

the sleeping children with axe and chopper. He also said

that his aunt (A-3 Pavitri Devi) clutched the tuft of his

mothers hair and yelled like a demoness in thirst for the

blood of the entire family.

Lalji (PW-1), the uncle of the deceased Ramesh (who is

uncle of A-1 Suresh also) and Amar Singh (PW-2) a neighbour

gave evidence supporting the version of PW-3 Jitendra. But

the said two witnesses did not attribute any overt act to

Pavitri Devi except saying that she too was present near the

scene of occurrence. The house of the accused was situated

not far away from the scene of occurrence but across the

road which abuts the house of the deceased.

The doctor (PW5-C.M. Tiwari) who conducted the autopsy

on the dead bodies of all the deceased described the

horrifying picture of the mauled bodies. The youngest of

the victims was a one year old child whose skull was cut

into two and the brain was torn asunder. The next was a

three year old male child who was killed with his neck axed

and the spinal cord, trachea and the larynx were snipped.

The next in line was PW-3 Jitendra - a seven year old child.

(His injuries can be separately stated). His immediate next

elder was Monisha a nine year old female child, who too

was axed on the neck, mouth and chest with her spinal cord

cut into two.

The mother of those little children Ganga Devi was

inflicted with six injuries which resulted in her skull

being broken into pieces. The last was Ramesh the bread

winner of the family, who was the father of the children.

Four wounds were inflicted on him. All of them were on neck

and above that. The injuries on Ramesh, when put together,

had neared just short of decapitation.

PW-3 Jitendra had three incised wounds on the scapular

region, but the doctor who attended on him (PW-6 S.K. Verma)

did not probe into the depth of one of them, presumably

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because of the fear that he might require an immediate

surgical intervention. However, he was not destined to die

and hence the injuries inflicted on him did not turn fatal.

The motive for the above dastardly massacre was the

greed for a bit of land lying adjacent to the house compound

of the deceased which A-1 Suresh claimed to be his. But

deceased Ramesh clung to that land and it resulted in

burgeoning animosity in the mind of Suresh which eventually

grew alarmingly wild.

The evidence of PW-1 Lalji and PW-2 Amar Singh was

considered by the Session Court in the light of various

contentions raised by the counsel for the accused. The

trial judge found the said evidence reliable. The Division

Bench of the High Court considered the said evidence over

again and they did not see any reason to dissent from the

finding made by the trial court. The evidence of PW-3

Jitendra, the sole survivor of the carnage, was evaluated

with greater care as he was an infant of seven years.

Learned Judges of the Division Bench of the High Court

accepted the evidence of PW-3 only to the extent it secured

corroboration from the testimony of PWs.1 and 2.

Though Mr. K.B. Sinha, learned senior counsel made an

endeavour to make some tears into the fabric of the

testimony of PWs.1 and 2 he failed to satisfy us that there

is any infirmity in the findings recorded by the two courts

regarding the reliability of the evidence of those two

witnesses. As the learned senior counsel found it difficult

to turn the table regarding the evidence against the accused

which is formidable as well as trustworthy, he focussed on

two aspects. First is that acquittal of Pavitri Devi does

not warrant interference from this Court. Second is that

this is not a case belonging to the category which compels

the court to award death penalty to the two appellants,

Suresh and Ramji.

We will now deal with the role played by Pavitri Devi

to see whether the court can interfere with the acquittal

order passed in her favour by the High Court. PW-3 said

that while he was sleeping the blood gushed out of the

wounds sustained by his father reached his mouth and when he

woke up he saw the incident. According to him, Pavitri Devi

caught hold his mothers hair and pulled it up, thereafter

she went outside and exhorted that everybody should be

killed. But PWs.1 and 2 did not support the aforesaid

version pertaining to Pavitri Devi. According to them, when

they reached the scene of occurrence Pavitri Devi was

standing in front of the house of the deceased while the

other two were inside the house engaged in the acts of

inflicting blows on the victims.

The position which prosecution succeeded in

establishing against A-3 Pavitri Devi is that she was also

present at the scene of occurrence. Learned counsel for the

State contended that such presence was in furtherance of the

common intention of the three accused to commit the murders

and hence she can as well be convicted for the murders under

Section 302 IPC with the aid of Section 34 IPC. Mr. K.B.

Sinha, learned counsel contended that if Section 34 IPC is

to be invoked as against Pavitri Devi the prosecution should

have established that she had done some overt act in

furtherance of the common intention.

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We heard arguments at length on the ambit of Section 34

IPC. We have to consider whether the accused who is sought

to be convicted with the aid of that Section, should have

done some act, even assuming that the said accused also

shared the common intention with the other accused.

Section 34 reads thus:

Acts done by several persons in furtherance

of common intention.- When a criminal act

is done by several persons in furtherance of

the common intention of all, each of such

persons is liable for that act in the same

manner as if it were done by him alone.

As the section speaks of doing a criminal act by

several persons we have to look at Section 33 IPC which

defines the act. As per it, the word act denotes as

well a series of acts as a single act. This means a criminal

act can be a single act or it can be the conglomeration of a

series of acts. How can a criminal act be done by several

persons?

In this context a reference to Section 35, 37 and 38 of

IPC, in juxtaposition with Section 34, is of advantage.

Those four provisions can be said to belong to one cognate

group wherein different positions when more than one person

participating in the commission of one criminal act are

adumbrated. Section 35 says that when an act is done by

several persons each of such persons who joins in the act

with mens rea is liable for the act in the same manner as

if the act were done by him alone with that knowledge or

intention. The section differs from section 34 only

regarding one postulate. In the place of common intention

of all such persons (in furtherance of which the criminal

act is done), as is required in Section 34, it is enough

that each participant who joins others in doing the criminal

act, has the required mens rea.

Section 37 deals with the commission of an offence by

means of several acts. The section renders any one who

intentionally cooperates in the commission of that offence

by doing any one of those acts to be liable for that

offence. Section 38 also shows another facet of one criminal

act being done by several persons without connecting the

common bond i.e. in furtherance of the common intention of

all. In such a case they would be guilty of different

offence or offences but not for the same offence. Among the

above four provisions the common denominator is the

participation of several persons (more than one person) in

the commission of a criminal act. The special feature of

Section 34 is only that such participation by several

persons should be in furtherance of the common intention

of all.

Hence, under Section 34 one criminal act, composed of

more than one act, can be committed by more than one persons

and if such commission is in furtherance of the common

intention of all of them, each would be liable for the

criminal act so committed.

To understand the section better it is useful to recast

it in a different form by way of an illustration. This would

highlight the difference when several persons do not

participate in the crime committed by only one person even

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though there was common intention of all the several

persons. Suppose a section was drafted like this: When a

criminal act is done by one person in furtherance of the

common intention of several persons each of such several

persons is liable for that act in the same manner as if it

were done by all such persons.

Obviously Section 34 is not meant to cover a situation

which may fall within the fictitiously concocted section

caricatured above. In that concocted provision the co-

accused need not do anything because the act done by the

principal accused would nail the co-accused also on the

ground that such act was done by that single person in

furtherance of the common intention of all the several

persons. But Section 34 is intended to meet a situation

wherein all the co-accused have also done something to

constitute the commission of a criminal act.

Even the concept of presence of the co-accused at the

scene is not a necessary requirement to attract Section 34,

e.g. the co-accused can remain a little away and supply

weapons to the participating accused either by throwing or

by catapulting them so that the participating accused can

inflict injuries on the targeted person. Another

illustration, with advancement of electronic equipment can

be etched like this: One of such persons in furtherance of

the common intention, overseeing the actions from a distance

through binoculars can give instructions to the other

accused through mobile phones as to how effectively the

common intention can be implemented. We do not find any

reason why Section 34 cannot apply in the case of those two

persons indicated in the illustrations.

Thus to attract Section 34 IPC two postulates are

indispensable. (1) The criminal act (consisting of a series

of acts) should have been done, not by one person, but more

than one person. (2) Doing of every such individual act

cumulatively resulting in the commission of criminal offence

should have been in furtherance of the common intention of

all such persons.

Looking at the first postulate pointed out above, the

accused who is to be fastened with liability on the strength

of Section 34 IPC should have done some act which has nexus

with the offence. Such act need not be very substantial, it

is enough that the act is only for guarding the scene for

facilitating the crime. The act need not necessarily be

overt, even if it is only a covert act it is enough,

provided such a covert act is proved to have been done by

the co-accused in furtherance of the common intention. Even

an omission can, in certain circumstances, amount to an act.

This is the purport of Section 32 IPC. So the act mentioned

in Section 34 IPC need not be an overt act, even an illegal

omission to do a certain act in a certain situation can

amount to an act, e.g. a co-accused, standing near the

victim face to face saw an armed assailant nearing the

victim from behind with a weapon to inflict a blow. The co-

accused, who could have alerted the victim to move away to

escape from the onslaught deliberately refrained from doing

so with the idea that the blow should fall on the victim.

Such omission can also be termed as an act in a given

situation. Hence an act, whether overt or covert, is

indispensable to be done by a co-accused to be fastened with

the liability under the section. But if no such act is done

by a person, even if he has common intention with the others

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for the accomplishment of the crime, Section 34 IPC cannot

be invoked for convicting that person. In other words, the

accused who only keeps the common intention in his mind, but

does not do any act at the scene, cannot be convicted with

the aid of Section 34 IPC.

There may be other provisions in the IPC like Section

120B or Section 109 which could be invoked then to catch

such non participating accused. Thus participation in the

crime in furtherance of the common intention is sine qua non

for Section 34 IPC. Exhortation to other accused, even

guarding the scene etc. would amount to participation. Of

course, when the allegation against an accused is that he

participated in the crime by oral exhortation or by guarding

the scene the court has to evaluate the evidence very

carefully for deciding whether that person had really done

any such act.

A Division Bench of the Madras High Court has said as

early as in 1923 that evidence of some distinct act by the

accused, which can be regarded as part of the criminal act

in question, must be required to justify the application of

Section 34 IPC. (vide Aydrooss vs. Emperor, AIR 1923 Madras

187).

In Barendra Kumar Ghosh vs. Emperor (AIR 1925 PC 1)

the Judicial Commission after referring to the cognate

provisions adverted to above, held thus:

Read together, these sections are

reasonably plain. S.34 deals with the doing

of separate acts, similar or diverse by

several persons; if all are done in

furtherance of a common intention, each

person is liable for the result of them all,

as if he had done them himself, for that

act and the act in the latter part of

the section must include the whole action

covered by a criminal act in the first

part, because they refer to it.

We have come across the observations made by another

Judicial Commission of the Privy Council of equal strength

in Mahbub Shah vs. Emperor (AIR 1945 PC 118). The

observation is that Section 34 IPC can be invoked if it is

shown that the criminal act was done by one of the accused

in furtherance of the common intention of all. On the fact

situation their Lordships did not have to consider the other

component of the Section. Hence the said observation cannot

be understood to have obviated the necessity of proving that

the criminal act was done by several persons which is a

component of Section 34 IPC.

In Pandurang vs. State of Hyderabad [AIR 1955 SC 216]

Vivian Bose J., speaking for a three-judge bench of this

Court focused on the second component in Section 34, IPC

i.e. in furtherance of the common intention. There was no

need for the bench to consider about the acts committed by

the accused charged, in order to ascertain whether all the

accused committed the criminal act involved therein. In

other words the first postulate was not a question which

came up for consideration in that case. Hence the said

decision, cited by both sides for supporting their

respective contentions is not of much use in this case.

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Mr. Pramod Swarup, learned counsel for the State

invited our attention to the decision of this Court in State

of U.P. vs. Iftikhar Khan and ors. {1973 (1) SCC 512} in

which it is observed that to attract Section 34 IPC it is

not necessary that any overt act should have been done by

the co-accused. In that case four accused persons were

convicted on a fact situation that two of them were armed

with pistols and the other two were armed with lathis and

all the four together walked in a body towards the deceased

and after firing the pistols at the deceased all the four

together left the scene. The finding of fact in that case

was also the same. When a plea was made on behalf of those

two persons who were armed with lathis that they did not do

any overt act, this Court made the above observation. From

the facts of that case it can be said that there was no act

on behalf of the two lathi-holders although the deceased was

killed with pistols alone. The criminal act in that case

was done by all the persons in furtherance of the common

intention to finish the deceased. Hence the observation made

by Vaidialingam, J., in the said case has to be understood

on the said peculiar facts.

It is difficult to conclude that a person, merely

because he was present at or near the scene, without doing

anything more, without even carrying a weapon and without

even marching along with the other assailants, could also be

convicted with the aid of Section 34 IPC for the offence

committed by the other accused. In the present case, the

FIR shows that A-3 Pavitri Devi was standing on the road

when the incident happened. Either she would have reached

on the road hearing the sound of the commotion because her

house is situated very close to the scene, or she would have

merely followed her husband and brother out of curiosity

since they were going armed with axe and choppers during the

wee hours of the night. It is not a necessary conclusion

that she too would have accompanied the other accused in

furtherance of the common intention of all the three.

Mr. Pramod Swarup, learned counsel for the State

contended that if she remained at the scene without sharing

the common intention she would have prevented the other two

accused from doing the ghastly acts because both of them

were her husband and brother respectively. The inaction of

Pavitri Devi in doing so need not necessarily lead to the

conclusion that she shared a common intention with others.

There is nothing to show that she had not earlier tried to

dissuade her husband and brother from rushing to attack the

deceased.

Thus we are unable to hold that Pavitri Devi shared

common intention with the other accused and hence her

remaining passively on the road is too insufficient for

reversing the order of acquittal passed by the High Court in

order to convict her with the aid of Section 34 IPC.

Mr. K.B. Sinha, learned senior counsel made an all out

effort to save the convicted appellants from death penalty.

The trial court and the High Court have given very cogent

reasons and quite elaborately for choosing the extreme

penalty. Knowing fully well that death penalty is now

restricted to the rarest of rare cases in which the lesser

alternative is unquestionably foreclosed as held by the

Constitution Bench in Bachan Singh vs. State of Punjab {1980

(2) SCC 684} we could not persuade ourselves in holding that

the acts committed by A-1 Suresh and A-2 Ramji should be

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pulled out of the contours of the extremely limited sphere.

Mr. K.B. Sinha cited a number of decisions including Panchhi

and ors. vs. State of U.P. {1998 (7) SCC 177} in an

endeavour to show that this Court had chosen to give the

alternative sentence in spite of the ferocity of the acts

perpetrated and a number of victims involved. None of such

cases is comparable with the facts in this case. Even after

bestowing our anxious consideration we cannot persuade

ourselves to hold that this is not a rarest of rare cases in

which the lesser alternative is unquestionably foreclosed.

Accordingly we dismiss both the appeals.

J

[ K.T. Thomas ]

New Delhi;

March 2, 2001.

1

18

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 247 OF 1991

Sohan & Anr. ... Appellants

Versus

State of Haryana & Anr. ... Respondents

With

Criminal Appeal No. 731 of 1991

Rajinder and others ... Appellants

Versus

State of Haryana ... Respondents

J U D G M E N T

Shivaraj V. Patil J.

These appeals are directed against the judgment and order

of the High Court of Punjab & Haryana made in Criminal Appeal No.

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454-DB of 1985.

These appellants were accused nos. 1 to 6 before the

Sessions Court. A-1 is the father of A-2. A-3 is the father of

A-4 to A-6. A-1 and A-3 are brothers by birth.

The prosecution case as unfolded by PW-7 at the trial is

that on 11.2.1985 the deceased Daya Nand and PW-7 Hoshiar Singh

had started from their village in order to reach Bhiwani to

attend court hearing in the appeal. When they were at the

outskirts of the village, the six accused emerged from behind

stones. Randhir (A-2) and Kartar (A-5) were armed with pharsis

and rest of them with lathis. They surrounded the deceased and

PW-7 saying In Ko Aaj Yahin zamin dai do aur khata kar do.

Looking to the danger, the deceased and PW-7 ran into the nearby

house of Nanak, the door of which was open. The accused chased

them. PW-7 ran ahead deeper into the house and reached a point

where there is a Neem tree and which is at higher level. He

looked back and saw Daya Nand had scaled a dauli (a small wall).

He was overtaken by Randhir who had also jumped over the dauli.

Randhir gave a pharsi blow on Daya Nand. At that stage, accused

Partap reached there and he also gave three lathi blows to Daya

Nand in the back. Sohan, Ramanand and Rajinder also arrived

there and each of them gave one lathi blow to Daya Nand. Sumer,

son of Nanak, the owner of the house having come out of the house

also saw this occurrence. After dealing with Daya Nand, the

accused proceeded to chase PW-7 but he ran away to his house.

After reaching home, he narrated, as to what happened, to his

brother Dani Ram and cousin Tara Chand who were sitting at the

entrance of the house and brought them to the spot of occurrence.

They found Daya Nand lying unconscious and the accused had run

away. They took Daya Nand to his house. From there, they

brought him to Primary Health Centre at Gopi at about 8.00 or

8.15 A.M.

According to PW-1, Dr. Dilbagh Singh, Incharge of the Gopi

Primary Health Centre, Daya Nand was brought to hospital at 8.30

A.M. His condition was serious as he was having multiple

injuries; after giving emergency treatment, referred him to

General Hospital, Bhiwani giving a ruqa to Police Station,

Badhra.

PW-2, Dr. R.N. Swami, attended Daya Nand at General

Hospital, Bhiwani. He sent ruqa at 10.10 A.M. to the Incharge,

Police Post, General Hospital, Bhiwani and proceeded with medical

examination. He found 12 injuries on Daya Nand. In response to

the ruqa sent by PW-2, Sub-Inspector, Udey Chand (PW-9),

Incharge, Police Post, General Hospital, Bhiwani reached the

emergency ward at 10.20 A.M. to find out if Daya Nand was in a

fit condition to make statement. The doctor gave opinion that

Daya Nand was unfit to make a statement. PW-9 has stated that a

man who was present by the side of Daya Nand told him that PW-7

had gone to bring medicine. PW-9, Udey Chand could meet PW-7 at

about 12.15 P.M. and recorded his statement as per Ex. PK/1 which

constituted F.I.R. in the case. With his endorsement PK/2, PW-9

gave ruqa Ex. P.C. along with his application made to the doctor

and copy of M.L.R. with a direction to carry to the Police

Station Badhra for the registration of the case.

Daya Nand died at 12.10 A.M. on 12.2.1985. PW-2, Dr. Gupta

intimated this fact to the Incharge, Police Post of the Hospital,

Bhiwani. The dead body was subjected to post-mortem examination

by Dr. R.G. Jindal (PW-4). The accused Randhir surrendered to

the court on 14.2.1985. The remaining accused were also arrested

on 15.2.1985. Thereafter recoveries were made at the instance of

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the accused as per the details given in the judgment of the

Sessions Judge in paragraphs 20-27.

In support of the case, the prosecution examined 12

witnesses including PW-6 Amir Chand, Draftsman and PW-10 Deep

Chand, the Headmaster of Government High School, Dalawas.

The learned Sessions Judge relying on the evidence of sole

eyewitness PW-7 Hoshiar Singh convicted all the accused for the

offences under Sections 148 and 302 read with Section 149 of IPC.

It is unfortunate that the approach and appreciation

adopted by the Sessions Court was manifestly erroneous and

contrary to the well-settled principles of law. It may be said

that the approach of the learned Sessions Judge has been one-

sided. Lapses, omissions and contradictions in the prosecution

case were either condoned or lightly brushed aside or were

supported without any justification against the probabilities

appearing in the case which is clearly demonstrated hereinbelow.

It should be remembered that PW-7 Hoshiar Singh is the cousin

of the deceased Daya Nand. Admittedly, there was civil

litigation between the accused on the one side and deceased Daya

Nand and himself and others on the other side. The alleged

motive for the commission of offence is the very civil

litigation. The suit for permanent injunction in respect of land

in dispute was filed on 11.3.1982 by accused Sohan in which

temporary injunction order was granted against the deceased and

PW-7 and others which was confirmed later after hearing both the

parties. Thereafter the suit itself was decreed on 20.12.1983.

The deceased Daya Nand and PW-7 had filed appeal against the

decree in the Court of Addl. District Judge, Bhiwani on

23.1.1984. Pw-7 had however admitted that accused Sohan was in

exclusive possession of the said land. These facts are

established by documents Ex. DA/1 to DA/10. PW-7 in the F.I.R.

as well as before the curt had claimed that civil suit with

regard to the joint land was instituted by him and Daya Nand

against other co-sharers Sohan and others and that the same was

dismissed. This was incorrect and belied by Ex. DA/1 to DA/10.

When it was pointed out that PW-7 was not trustworthy as he had

made false statement against the records being himself party to

the proceedings, the learned Sessions Judge in para 35 of the

judgment, dealing with the same has stated thus :-

The criticism is factually correct but it does

not make any dent in the prosecution case.

Hoshiar Singh is an illiterate witness and is

not expected to know the background details of

litigation. Suffice it to say that it is a

common case of the parties that there was

litigation over the land. In other words,

there was bad blood between them and that is

enough for our purpose.

According to the learned Sessions Judge, it was enough for

the purpose of establishing motive of the accused to commit the

crime but failed to objectively consider why it was not enough to

disbelieve the evidence of PW-7 in view of the fact that he was

both interested and partisan that too in the absence of any

corroboration.

As to the contention that PW-7, Hoshiar Singh, was most

unlikely to accompany the deceased to Bhiwani on the date of

occurrence on the ground that looking to Ex. DA/5 to DA/10, the

order passed in the appeal, the presence of PW-7 was not there

and in the appeal his presence was not required on 11.2.1985, the

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learned Sessions Judge observed that there was no bar for PW-7

from attending the court and that he was illiterate person and

did not know what proceedings were to take place. That learned

Sessions Judge added on his own Even otherwise also, the

parties do attend even on dates which are not for final

hearing. On behalf of the accused, efforts were made to show

that neither the deceased Daya Nand nor PW-7 Hoshiar Singh on the

date of occurrence at the time mentioned were going from their

village to Bhiwani, referring to various circumstances, one of

the circumstance being neither any money nor any documents were

recovered from the dead body of Daya Nand. The learned Sessions

Judge has strongly observed thus :-

It is not disputed that injured Daya Nand was

first carried home. If he had any documents or

money on his person, the same might have been

removed by the members of his family. There

was no point in sending a dying man to the

Hospital with money or documents in his pocket.

The wiser course would be to remove them.

The case of the accused that it was a blind murder, must

have taken place at night time was brushed aside without any

deeper consideration.

When it was found that there was conflict in the evidence

of PWs 6 & 7, the learned Sessions Judge preferred to believe PW-

7, a partisan, rather than the PW-6, the Draftsman, a Government

servant. The learned Sessions Judge has dubbed him as a dishonest

witness. If that be so, we fail to understand as to why the

prosecution did not treat him as hostile.

When the contradiction in the evidence of PW-11 Sub

Inspector Krishan Lal was pointed out with reference to sending

of ruqa of the doctor along with the M.L.R., the learned Sessions

Judge has stated thus:-

This discrepancy is there, but it is wholly

immaterial. It appears that the memory of the

S.I. was failing him on this point.

Similarly when it was contended that there was delay in the

F.I.R., the learned Sessions Judge has stated that Daya Nand was

in a serious condition; everybody including PW-7 were interested

to save life of the deceased although the Sub Inspector of Police

went to hospital at 10.20 AM, he could not meet PW-7 till 12.20.

It is stated that PW-7 had gone to buy medicines and as such he

was not available. The presence of PW-7 in the hospital was not

spoken to by the doctor on duty and even his name was not

mentioned as a person accompanying the deceased to the hospital.

With all this, the learned Sessions Judge says that the delay in

F.I.R. is never vital per se when the evidence otherwise inspires

confidence. It is strange as to how such evidence of PW-7 alone

without any corroboration could be said to inspire confidence.

Again when contradiction in the statement of ASI Kaura Ram

was shown with regard to leaving police station for starting

investigation, the learned Sessions Judge has stated thus:-

Surely, the statement of A.S.I. Kaura Ram does

not tally with the record. But for whatever

reason this lacuna may be, it does not go to

the root of the matter even if we exclude the

presence of Kaura Ram from the scene on

11.2.1985, the prosecution case will remain

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unaffected.

The learned Sessions Judge did not appreciate the evidence

objectively. He failed to see that all the male members 3of the

two families of the accused were involved because of enmity on

account of land dispute. The evidence of PW-7, the sole eye-

witness without any corroboration ought to have been scrutinized

with great caution who has given the graphic details as to the

injuries caused by each accused when he himself was frightened

and was running away.

The trial court partly believed the recovery of weapons and

clothes but the High Court totally disbelieved the recovery.

This was also strong circumstance against the prosecution.

Reacting to the submission that non-examination of another

eye-witness Sumer the learned Sessions Judge has stated thus :-

But Sumer was given up as having been won over

by the accused. And the phenomenon of such

winning over is not unknown to the courts. In

any event, Sumers non-examination does not

wash away the remaining evidence.

This approach of the learned Sessions Judge is unusual and

strange. The learned Sessions Judge failed to objectively assess

and analyse the evidence and circumstances consistent with

crystalised judicial view and that it was unsafe to act on the

sole evidence of PW-7 in the circumstances.

An accused is presumed to be innocent until he is found

guilty. The burden of proof, that he is guilty, is on the

prosecution and that the prosecution has to establish its case

beyond all reasonable doubts. In other words, the innocence of

an accused can be dispelled by the prosecution only on

establishing his guilt beyond all reasonable doubts on the basis

of evidence. In this case, if only the Sessions Judge had

reminded himself of the above-mentioned basic or fundamental

principles of criminal jurisprudence, direction of his approach

and course of his appreciation of evidence would have been

different and thereby perversity in appreciation of evidence

could have been avoided.

It is equally unfortunate that the High court did not

seriously and objectively re-appreciate the evidence placed on

record as the first appellate court, but has simply appended its

seal of approval to the judgment of the Sessions court. When it

was pointed out that PW-7 was not a truthful witness inasmuch as

he gave false statement with regard to the very litigation

between the parties, the High Court observed that whatever may be

the situation that a case was fixed in the appeal on 11.2.1985

and to attend the proceedings in the appellate court, someone had

to go to the court. We fail to understand as to how someone had

to essentially go to attend the court in appeal. The High Court

proceeded to say that PW-7 had no reason to falsely implicate the

accused 4 to 6 unless they were there. The observation of the

High Court is that :-

The manner in which Daya Nand deceased and

Hoshiar Singh PW-7 were chased also shows that

the accused were sufficient in number. The

number and type of injuries on the dead body

of Daya Nand deceased also suggests that the

number of assailants was quite big. These

circumstances lend assurance to the truthful

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nature of this version.

We are unable to understand as to how chasing deceased Daya

Nand and PW-7 showed that the accused were sufficient in numbers

and similarly how the number and types of injuries on the

deceased suggested that the number of assailants was quite big.

If this is accepted, the number of accused could be more than

six. Commenting on the non-examination of another eye-witness

Sumer, the High Court has stated thus :-

As the land dispute between Daya Nand and his

collateral on the one side and Sohan Lal

accused on the other had resulted into this

incident, Sumer, his father and other people in

the village may not have liked siding with

anybody. These days it is commonly seen that

in such disputes, people normally abstain

themselves from involving into the affairs of

others by taking stand in favour or against any

of the parties.

In the absence of any explanation by the prosecution as to

the non-examination of the Sumer, this sort of conjecture by the

High Court was neither warranted nor sustainable. The High Court

has made further guess work by stating that:-

There may be other reasons for Sumer to stay

away from the witness box which may not be

envisaged by us.

In regard to non-examination of Dani Ram, the brother of

PW-7 and Tara Chand, the cousin of PW-7, the High Court has

stated that their appearance or non-appearance could hardly

improve matters in favour of the accused.

It was pointed out that when Daya Nand was taken to Bhiwani

hospital, Tara Chand was with him at the time of his medical

examination and if PW-7 was with the deceased at that time, his

presence would have been recorded by the doctor. The doctor

stated that Tara Chand was there. PW-7 himself had stated that

Tara Chand had accompanied him when he took Daya Nand, the

deceased, to the hospital. This was another reason why Tara

Chand should have been examined. Non-mentioning the name of PW-7

as accompanying the deceased to the hospital also raises the

doubt as to his presence in the hospital.

The High Court has disbelieved the recovery of the clothes

and weapons of the offences. With all this, the High Court

affirms the judgment of conviction of the Sessions Court acting

on the evidence of PW-7 alone.

We may add that the prosecution case entirely rested on the

sole evidence of PW-7, who was not only interested being the

cousin of the deceased and was inimical too to the accused in

view of the civil litigation referred to above. It was unsafe to

act on his evidence without any corroboration. Although there

were material witnesses available to corroborate, their non-

examination or withholding their evidence was a serious lacuna in

the prosecution case. Non-examination of another eye-witness,

Sumer, whose name was mentioned in the FIR and who had witnessed

the occurrence according to PW-7, was also fatal. PW-7 stated

that he himself, his brother Dani Ram and his cousin Tara Chand

went to the place of occurrence and lifted Daya Nand to his house

and their clothes got bloodstained. The bloodstained clothes

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were neither produced nor seized. Failure to do so raises a

serious doubt as to the version of PW-7. Dani Ram and Tara Chand

were also not examined. PW-7 stated that immediately after the

occurrence he ran towards his house; in front of his house Dani

Ram and Tara Chand were sitting, he informed them and narrated

about the incident and thereafter all three of them went to the

place of occurrence and brought the deceased Daya Nand to his

house. If only Dani Ram and Tara Chand were examined they would

have corroborated the evidence of PW-7. This again shakes the

prosecution case. The High Court disbelieved the recovery of

both weapons and clothes. In all cases recovery by itself may

not be material. But in this case in the absence of

corroboration to the evidence of PW-7, the recovery aspect

assumed importance. The civil litigation was started in 1982;

the suit was decreed in favour of Sohan, accused no. 1 in 1993;

the appeal filed by the deceased and PW-7 was pending on the date

of occurrence; there was no immediate provocation or cause for

committing the offence on 11.2.1985.

The credibility of PW-7 and truthfulness of his evidence in

the circumstances needed to be scrutinized with great care and

caution. His evidence does not inspire confidence for the

reasons that (a) though he was a party to the civil suit as a

defendant along with deceased Daya Nand, he falsely stated that

it was deceased Daya Nand who filed the suit, when as a matter of

fact it was the accused no. 1 Sohan, who had filed the suit. (b)

He had made a wrong statement as to the possession of the

disputed land but he was forced to admit the possession of

accused Sohan in the cross-examination. (c) He stated, When the

Draftsman came to the spot I was not there. PW-6, the

draftsman clearly stated in his evidence that he prepared the

site plan Exh. PN on the pointing out of PW-7 and Sumer (not

examined by the prosecution). (d) He stated, We had picked up

Daya Nand from the spot on our hands. Our clothes had got blood

stained in this process. He further stated, I had not shown my

blood stained clothes to the police. I had changed my clothes

before leaving for Bhiwani.

In the light of what is stated above, after deeper

consideration, detailed examination of evidence and probabilities

of the case, in the light of the arguments advanced by the

learned counsel on either side, we have no hesitation in holding

that the Sessions Court as well as the High Court have

concurrently and manifestly erred in convicting and sentencing

the accused. In a case like this it is our duty to interfere

with the impugned judgment and order to do substantial justice.

Under these circumstances and in view of the discussion

made above, we have no hesitation in holding that the prosecution

has failed to establish the guilt of the accused beyond

reasonable doubt. Hence we set aside the judgment and order of

the Sessions Court as affirmed by the High Court. Accordingly,

these appeals are allowed and the accused are acquitted and their

bail bonds shall stand discharged.

...................J.

( U.C. BANERJEE )

...................J.

( SHIVARAJ V. PATIL)

New Delhi

Dated: 02.03.2001

14

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