State of H.P. Vs.
Nazar Singh & ANR.  INSC 973 (6 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1403 OF 2003 State
of H.P. ...Appellant Versus Nazar Singh & Anr. ...Respondents
S.B. SINHA, J :
State is before us aggrieved by and dissatisfied with a judgment of acquittal
passed by a Division Bench of the High Court of Himachal Pradesh, Shimla in
Criminal Appeal No. 41 of 1994.
Singh (since deceased), Jagtar Singh (since deceased) as well as Nazar Singh
and Baldev Singh, respondents herein were prosecuted for commission of an
offence under Section 302 read with Section 34 and Section 323 read with
Section 34 of the Indian Penal Code (for short, "the 2 Code") for
causing death of one Lamber Singh and simple hurt to one Avtar Singh.
occurrence took place at about 9.30 p.m. on 30.03.1993 in the field of the
deceased Lamber Singh. Lamber Singh had gone to tie his dog therein. PW-1
Bakshish Singh, brother of the deceased, after some time heard him shouting
whereupon he ran towards the field and found that Sarwan Singh armed with
gandasi and others armed with lathis had been assaulting the deceased. Sarwan
Singh is said to have inflicted two injuries with a gandasi on his head whereas
the others were said to have inflicted lathi blows on him.
Singh alias Bittu (PW-2) also reached there. Both these witnesses attempted to
save him but were attacked by them. Avtar Singh allegedly was hit by Sarwan
Singh with the handle of broken gandasi on his right arm. Further, the
prosecution case is that all the convicts went towards cattle shed using
abusive language threatening to kill them. The motive for the said incident is
said to be a quarrel which had taken place 20 days prior thereto at the time of
solemnization of the marriage of two nieces of PW-1.
Singh was brought to a hospital in an injured condition. His medical history
was recorded. He put his left thumb impression. He, however, did not name any
person responsible for inflicting those injuries on him. He died at about 3.40
the accused persons were arrested on 1.04.1993. They were taken into custody on
1.04.1993. They were, however, for reasons best known to the investigating
officer shown to have been formally arrested on 2.04.1993.
on or on the basis of the evidence of the aforementioned Avtar Singh, who is
said to be an injured witness, the learned Trial Judge opined that the accused
are guilty of commission of an offence under Section 304 Part II of the Indian
Penal Code read with Section 34 thereof.
They were sentenced
to undergo seven years' rigorous imprisonment. A fine of Rs. 5000/- was also
imposed on them. They were also sentenced to undergo rigorous imprisonment for
six months each under Section 323 read with Section 34 of the Indian Penal
appeals were preferred thereagainst, viz., 4 (i) Respondents preferred
Criminal Appeal No. 41 of 1994 against their conviction and sentence imposed by
the Trial Court.
(ii) The State
preferred an appeal for enhancement of their sentence which was marked as
Criminal Appeal No. 270 of 1994.
(iii) The State filed
another appeal being Criminal Appeal No. 92 of 1995 questioning the judgment of
acquittal against Sarwan Singh and others under Section 302 read with Section
34 of the Indian Penal Code.
reason of the impugned judgment, the High Court has allowed the appeal
preferred by the respondents and passed a judgment of acquittal.
State did not prefer any appeal against the dismissal of its appeals in
Criminal Appeal Nos. 270 of 1994 and 92 of 1995. An appeal has been preferred
only against the judgment passed in Criminal Appeal No. 41 of 1994.
Sarwan Singh and Jagtar Singh died on 5.02.2002 and 4.11.2000 respectively,
i.e., during pendency of the appeal.
Naresh K. Sharma, learned counsel appearing on behalf of the State, would
having gone to the field of the deceased variously armed must be held to have
formed a common intention to cause death of the deceased Lamber Singh.
(ii) PW-2 being an
injured witness, the High Court should not have disbelieved his evidence
particularly when implicit reliance thereupon had been placed by the learned
(iii) There was
furthermore no reason as to why the evidence of PW-1 also could not have been
(iv) As the medical
report shows that the deceased had suffered as many as 10 injuries, the High
Court should have presumed participation of more than one accused.
(v) Only because no
incised wound was found, the same, by itself, could not have been the
conclusive proof of innocence of the respondents herein particularly in view of
the defence raised by them before the learned Trial Judge only to the effect
that they had no common intention.
I.B. Gaur, learned counsel appearing on behalf of the respondents, however,
would support the impugned judgment.
adverting to the contentions raised by Mr. Sharma, we may notice the medical
The injury report
which was prepared at about 1.40 a.m. inter alia reads, thus:
"1. There was
present swelling and tenderness over left elbow. The swelling was reddish
bluish in colour. There was present rail track contusion just above the elbow.
The contusion was horizontal and was 4 cm x 5 cm in size with reddish in center
and bluish at the periphery.
*** *** ***
6. There was present
a wound over the left side of the scalp 2 cm lateral to midline. The wound was
vertical in direction. The size of the wound was 8 cm x 1 cm x 1 cm. The hair
around the wound were matted with blood and were not chopped. Clotted blood was
present in the wound.
The margins of the
wound were irregular and ragged.
7. There was present
a wound over right side of the scalp 4 cm lateral to midline. The wound was
oblique in direction. The size of the wound was 6 cm x 1 cm x 1 cm. The hair
around the 7 wound were matted with blood. The hair were not chopped. The
margins of the wound were irregular and ragged."
According to the
doctor, Injury No. 1 was grievous and all other injuries being Injury Nos. 2 to
10 were simple in nature. The doctor did not reserve his opinion for any of the
injuries and any X-ray or any other test was not prescribed.
Dr. R.K. Jaswal,
autopsy surgeon, however, observed the following injuries on the body of the
swelling and echymosis of the left elbow.
2. There was long
bruise 15 cm x 4 cm with healthy center on the left arm.
3. Diffuse swelling
and ecchimosis on the right arm.
4. Rail road
contusion on the back 12 cm x 5 cm
5. There was stitched
wound on left side of the scalp 2 cm lateral to the midline. The wound was
vertical in direction. On removing the stitches the wound measured 8 cm x 1 cm
x 1 cm.
6. Bluish ecchimosis
of the left ankle.
7. Oblique wound on
the right side of the scalp about 1.1/2 inch lateral to the midline. Stitched 6
cm in length and had blood underneath it with fracture of the underlying skull.
8. Multiple bruises
over the whole of the body."
The autopsy surgeon
was of the opinion that Injury Nos. 6 and 7 and the injury on the parietal
region were sufficient to cause death in the ordinary course of nature.
No incised wound was
found. Sarwan Singh is said to have used gandasi. He, according to PWs 1 and 2,
the so-called eye-witnesses, caused injuries on the parietal region which,
according to Mr. Sharma, were sufficient to cause death.
Sarwan Singh is dead. We would proceed on the assumption that he could have
been found guilty for commission of an offence under Section 304 Part II of the
Indian Penal Code for causing death of the deceased Lamber Singh.
the evidence brought on record, it appears that the deceased went to his field
on hearing the barking of his dog at 9.30 p.m. It was a dark night. There is
nothing to show that all the accused persons were waiting for him or had come
to assault him with any common intention. According to 9 the prosecution, a
dispute arose with regard to laying down of a pipeline three months prior to
the date of occurrence. It, however, appears that the matter was settled
through the intervention of the panchayat. Allegedly, as noticed hereinbefore,
the accused had abused PW-1 at the time of marriage of his nieces in his
village. Nothing has been brought on record to show that there existed any enmity
between the deceased and the accused. We have noticed hereinbefore that cause
of his injuries was disclosed by the deceased himself. He put his left thumb
impression. He did not name the respondents therein. As he had put his left
thumb impression, it may be presumed that he was conscious at that time.
to PW-2, after assaulting Lamber Singh, the accused persons were standing at
some distance and all of a sudden Sarwan Singh came and assaulted him.
the accused who were taken to custody on 1.04.1993 but were shown to have been
formally arrested on 2.04.1993 is not known. Both the prosecution witnesses
stated that the handle of the gandasi had broken down.
Why the broken part
of the gandasi was not seized was not disclosed.
deceased, as noticed hereinbefore, died after 3 O'clock in the morning. The
investigating officer Head Constable Ram Nath (PW-10) had gone to hospital upon
receipt of an information. He tried to record the statement of the deceased
twice. As he was not in a position to give a statement, he recorded the
statement of PW-1. It is in the aforementioned situation difficult to accept
that the First Information Report was recorded at 12.45 p.m., i.e., on the said
Sarwan Singh and others had any intention to cause the death of Lamber Singh,
he could have used his gandasi from the sharp end. In the statement before the
medical officer by the deceased, assault by gandasi also had not been
is wholly unlikely that when a large number of villagers, as stated by PWs 1
and 2 had assembled, other circumstances and in particular assault by Sarwan
Singh upon PW-2 would not be testified by any other independent person. In this
situation, it is difficult to comprehend as to how a common intention was
formed to cause murder of the deceased.
Mr. Sharma would
contend that they must have formed a common intention. Such common intention,
if any, assuming there was one, was to cause simple hurt as all the ten
injuries were found to be simple except Injury No. 1 which was suffered by the
deceased on his forearm. We would, however assume that Injury Nos. 6 and 7 were
not noticed to be grievous injury by the doctor. It may be so but the nature of
injuries inflicted on other parts of the body of the deceased clearly go to
show that the others came with common intention to cause his death as his
presence in the field was wholly unexpected.
is well settled that there exists a distinction between common intention and
In Mohinder Singh and
Ors. v. State of Punjab [JT 2006(4) SC 96], this Court observed:
"21. In Rabindra
Mahto and Ors. v. State of Jharkhand JT 2006 (1) SC 137, this Court has held
that under Section 149 IPC, if the accused is a member of an unlawful assembly,
the common object of which is to commit a certain crime, and such a crime is
committed by one or more of the members of that assembly, every person who
happens to be a member of that assembly would be liable for the commission of
the crime being a member of it irrespective of the fact whether he has actually
committed the criminal act or not.
There is a
distinction between the common object and common intention. The common object
need 12 not require prior concert and a common meeting of minds before the
attack, and an unlawful object can develop after the assembly gathered before
the commission of the crime at the spot itself. There need not be prior meeting
of the mind. It would be enough that the members of the assembly which
constitutes five or more persons, have common object and that they acted as an
assembly to achieve that object. In substance, Section 149 makes every member
of the common unlawful assembly responsible as a member for the act of each and
all merely because he is a member of the unlawful assembly with common object
to be achieved by such an unlawful assembly. At the same time, one has to keep
in mind that mere presence in the unlawful assembly cannot render a person
liable unless there was a common object and that is shared by that person. The
common object has to be found and can be gathered from the facts and
circumstances of each case."
State having not preferred any special leave against the dismissal of their
appeals against the judgment of acquittal recorded by the Trial Court under
Section 302/34 of the Indian Penal Code, they must be held to have accepted the
judgment of the Trial Court under Section 304 Part II thereof.
was, in our opinion, in the facts and circumstances of the case, no intention
on the part of any one of the accused to cause death. If there was such
intention, it is difficult to form an opinion that they could have formed an
intention to cause unintentional death. It is not a case where they had
exercised their right of private defence.
The matter might have
been different if they were convicted under Section 302 of the Indian Penal
Code. If a common intention was formed merely to cause simple hurt, only Sarwan
Singh was guilty of causing an offence under Section 304 Part II of the Indian
Penal Code and not others.
have already been convicted for commission of an offence under Section 323 of
the Indian Penal Code and they must have been in custody for some time. We,
therefore, do not intend to interfere with the impugned judgment. The appeal is
[Dr. Mukundakam Sharma]