Kharkan & Ors Vs. The State of U.P
 INSC 183 (29 August 1963)
29/08/1963 HIDAYATULLAH, M.
GUPTA, K.C. DAS
CITATION: 1965 AIR 83 1964 SCR (4) 673
RF 1965 SC 87 (10)
Criminal Procedure-Two incidents-Trial
separate--Prior acquittal in one-If operates as bar to conviction in another
case Code of Criminal Procedure, 1898 (Act V of 1898), ss. 403, 236, 237.
The eight appellants variously armed attacked
one 'T' and as a result of the assault 'T' died. These appellants then
proceeded to loot the house of 'T' and on the way met four others who joined
them. They then came across one 'P' and assaulted him. There was a small gap of
time and 'the places of assault were different. The magistrate framed a single
charge but the Session Judge framed two charges namely one connected with the
attack on 'T' and the other connected with the attack on 'P'. He also separated
the trials on the two charges. The Sessions judge convicted the appellants in
both cases. The appeal in the second case i.e. the case relating to assault on
'P' was heard first by the High Court and the appellants were acquitted of the
charges of being members of an unlawful assembly. Later the appeal connected
with the assault on 'T' was heard by the High Court and in that appeal their
convictions and sentences were confirmed. The present appeal arises out of the
convictions and sentences passed by the High Court. The appellants contended
that the prior acquittal in the second case operated as a bar to the conviction
in the present case. The appellants relied on a decision of the Privy Council
namely Sarnbasivam v. Public Prosecutor Federation of Malaya and of this Court
in Pritam Singh v. State of Punjab.
Held: (i) There was nothing in common between
the present appeal and the aforesaid two cases relied upon by the appellants. In
this case the assault on 'T' was over when the unlawful assembly formed its new
common object namely the assault on 'P'.
(ii) A plea of autrefois acquit which is statutorily
recognised in India under s. 403 of the Code of Criminal Procedure arose when a
person is tried again for the same offence or on the same facts for any other
offence for which a different charge from the one made against him might have
been made under s. 236 or for which he might have been convicted under s. 237.
The prior acquittal in the other case did not operate as a bar to the
conviction in the present case as the charge in the other case was quite
different from and independent of the charge in the present case, and ss. 236
and 237 of Code of Criminal Procedure were not applicable to the present facts
because the two offences were distinct.
Sambasivam v. Public Prosecutor Federation of
Malaya, [ 1950] A.C. 458, Pritam Singh v. State of Punjab, A.I.R. 1956 S.C.
415, Gurcharan Singh v. State of Punjab,  3 S.C.R. 585 and 674 Mohinder
Singh v. State of Punjab, Cr. A. No. 140 of 1961 decided on 31-7-63, explained.
(iii) This court, in the absence of special
circumstances, does not review for the third time evidence which has been
accepted in the High Court and the trial court.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 95 of 1961.
Appeal by special leave from the judgment and
order dated February 15, 1961, of the Allahabad High Court in Criminal Appeal
No. 1597 of 1960.
D. S. Tewatia and K. B. Mehta, for the
O. P. Rana and C. P. Lal, for the
August 29, 1963. The judgment of the Court
was delivered by HIDAYATULLAH J.-This is an appeal by special leave against the
judgment of the High Court of Allahabad in Criminal Appeal No. 1597 of 1960
decided on February 15, 1961. The appellants are eight in number and they have
been convicted under S. 325 read with S. 149 of the Indian Penal Code and
sentenced to three years rigorous imprisonment. They have also been convicted
variously under ss. 147 & 148, Indian Penal Code and sentenced to smaller
terms of imprisonment which need not be mentioned as those sentences are made
to run concurrently with the above sentence. They were originally charged under
S. 302 read with S. 149, Indian Penal Code for the murder of one Tikam on
January 24, 1960 at about noon in village Nandgaon Police Station Barsana
District Mathura. The Session Judge, Mathura, did not think that a case of
murder was made out and convicted them of the lesser offence. Their appeal to
the High Court was dismissed and the conviction and sentences were maintained.
There was yet another trial at which these
eight persons and four others were tried under S. 307/149, Indian Penal Code
for causing hurt to one Puran with such intention and under such circumstances
that if by that act they had caused his death they would have been guilty of
murder and also under ss. 147 & 148 of the Penal Code for being members of
an unlawful assembly, the common object of which was an attempt on Puran's
life. The learned Sessions judge, Mathura held in the second case that the
injuries sustained by Puran warranted an 675 offence under s. 323, Indian Penal
Code. The accused and Puran compounded that offence and all the accused were
acquitted. The Sessions judge, however, convicted 11 out of 12 accused under
ss. 147 & 148, Indian Penal Code and awarded different sentences, according
to the weapons possessed by them. One Koka was acquitted because his plea that
he was blind from birth was accepted. The 11 accused in the second case
appealed to the High Court and were acquitted of the charge of being members of
an unlawful assembly. That Judgment of the High Court was delivered on January
31, 1961, in Criminal Appeal No. 1598 of 1960, fifteen days before the
confirmation of the conviction and sentences of the eight appellants in this
appeal. The facts of the case may now be given.
There was enmity between Tikam (deceased) and
the appellants and on January 24, 1960, just about noon time Tikam was sitting
at the shop of a blacksmith in village Nandgaon.
Dulli and Nathi who were examined as P. Ws. 2
& 3 were sitting near him. The appellants who were armed with Ballams, a
Pharsa and Lathis arrived on the spot and on seeing Tikam started to assault
him. Tikam was severely injured and fell in a ditch adjacent to the road but
even after he fell in it the assault was continued by the appellants. He died
the same day about five hours later.
After assaulting Tikam, these appellants
decided to ransack his house and started towards it. On the way they were met
by the other four accused and this brought their number to twelve. While they
were going to the house of Tikam they saw Puran and decided to beat him. Puran
was assaulted and the second case arose out of the assault on him.
The learned magistrate who committed the
accused to stand their trial before the Court of Sessions framed a common
charge in respect of the two incidents but the Sessions judge amended the
charge and divided it into two charges namely one connected with the attack on
Tikam and the other connected with the attack on Puran., He also separated the
two trials on the two charges. As stated already lie convicted the eight appellants
in respect of their assault on Tikam and the same appellants with three others
in respect of their assault on Puran.
676 The appeal in the second case was heard
first and was allowed by the High Court and the 11 appellants in that appeal
including the eight before us were ordered to be acquitted.
It was contended before us by Mr. Tewatia
that Mr. Justice Sharma who delivered the judgment impugned before us did not
allow the appellants a chance to reply to the arguments on behalf of the State
and thus denied them a fair hearing.
This fact was mentioned in the petition for
certificate in the High Court and has been repeated in the petition for special
leave. Mr. Justice Sharma had proceeded to deliver judgment as soon as the
arguments were over and the judgment was delivered by him on two consecutive
days in the presence of the appellants and their counsel. If any such right had
been denied to the appellants they should have brought the matter immediately
to the notice of the learned Judge and he would have rectified it. It appears
that the appellants were hoping for an acquittal in view of the prior acquittal
by the learned judge in the companion case and realised too late that their
appeal was not accepted. It is for this reason that they do not appear to have
raised this issue before the learned Judge when they asked him to certify the
appeal and his Order does not show that they made a grievance that the hearing
was not fair. In our opinion this point cannot be considered because though. it
was mentioned in the petition for certificate it was apparently not pressed
before Mr. Justice Sharma.
The next contention of the appellants is that
the prior acquittal in the second case operates as a bar to the conviction in
the present case and the High Court ought to have given the appellants the
benefit of the prior acquittal. Reliance in this connection is placed upon a decision
of the Privy Council in a case from Malaya State reported in Sambasivam v.
Public Prosecutor/Federation of Malaya(1) and particularly the following
passage from the judgment of Lord Mac Dermott:
"The effect of a verdict of acquittal
pronounced by a competent court on a lawful charge and after a lawful trial is
not completely stated by saying that the person acquitted cannot be tried again
for the same offence.
 A.C., 458 at p. 479.
677 To that is must be added that the verdict
is binding and conclusive in all subsequent proceedings between the parties to
the adjudication. The maximum "Res judicata pro veritate accipiter"
is no less applicable to criminal than to civil proceedings. Here, the
appellant having been acquitted at the first trial on the charge of having
ammunition in his possession, the prosecution was bound to accept the
correctness of that verdict and was precluded from taking any step to challenge
it at the second trial. And the appellant was no less entitled to rely on his
acquittal in so far as it might be relevant in his defence. That it was not
conclusive of his innocence on the firearm charge is plain, but it undoubtedly
reduced in some degree the weight of the case against him, for at the first
trial the facts proved in support of one charge were clearly relevant to the
other having regard to the circumstances in which the ammunition and revolver
were found and the fact that they fitted each other." The above passage
was cited with approval by this Court in Pritam Singh v. State of Punjab(1).
The two cited cases were considered and distinguished by this Court in Mohinder
Singh v. State of Punjab(2) and Pritam Singh's case was again distinguished in
Gurcharen Singh & anr. v. State of Punjab(1). As pointed out in Mohinder
Singh v. State of Punjab(2), the case of the Privy Council involved a
confession by an accused in which he admitted possession of a firearm and some
ammunition which were both offences under the relative law of Malaya State. He
was convicted on the basis of that statement on two counts but on appeal was
acquitted in respect of the count relating to the possession of ammunition and
a fresh trial was ordered in respect of the count relating to the possession of
the firearm. In the second trial the confession was again relied upon and he
was convicted. The Privy Council set aside the conviction because the
confession was incapable of being divided into two parts so as to make separate
confessions about the (1) A.I.R. 1956 S.C. 415. .
(2) Cr. A. No. 140 of 1961, decided on
(3)  3 S.C.R. 585.
678 possession of firearm and about the
possession of ammunition. Their Lordships held that the confession which was
indivisible could not be used at all, in view of the acquittal recorded earlier
on the other count. In Pritam Singh's case(1) the accused made a statement
leading to the recovery of a firearm with which he was alleged to have shot one
of the victims. He was prosecuted for possession of the firearm and was
acquitted but the evidence of the possession of the firearm was used in the
murder charge. This was held to be not permissible. As explained in Mohinder
Singh's case(2), the acquittal in respect of the possession of firearm affected
the admissibility of the same evidence in connection with the murder case,
because the firearm could not at the same time be possessed as well as not
possessed by the accussed. The acquittal under the Arms Act,, being proper,
affected the evidence of possession in the murder case. In Mohinder Singh's
case(2) as well as in Gurcharan's(3) case Pritam's(1) case was distinguished
because in those cases, the acquittal under the Arms Act was later than the
conviction on the substantive charge.
There is nothing in common between the
present appeal and the two cases relied upon by the appellants. In this case
there is no doubt a prior acquittal but on a charge which was quite different
from and independent of the charge in the present case. The assault on Tikam
was over when the unlawful assembly formed its now common object namely the
assault on Puran. The acquittal proceeded mainly because Puran compounded the
offence under s. 323 and the High Court did not feel impressed by the evidence
about the remaining charges, The charges on which that acquittal took place had
nothing whatever to do with the charges on which there is conviction in the
present appeal. A plea of autrefois acquit which is statutorily recognised in
India under s. 403 of the Code of Criminal Procedure arises when a person is
tried again for the same offence or on the same facts for any other offence for
which a different charge from the one made against him might have been made un(1)
A.I.R. 1956 S. C. 415.
(2) Cr. A. No. 140 of 1961, decided on
(3)  3 S.C.R. 585.
679 der s. 236 or for which he might have
been convicted under s. 237.
Section 236 provides for a situation where it
is doubtful what offence has been committed. When a single act or series of
acts is of such a nature that it is doubtful which of several offences the
facts which can be proved will constitute, that section permits that the
accused may be charged with having committed all or any of such offences and
any number of such charges may be tried at once or he may be charged in the
alternative with having committed some one of such offences. Section 237
enables the Court to convict an accused charged with one offence for a
different offence where the facts show that a different offence has been
Neither of these provisions is applicable to
the present facts because the two offences were distinct and spaced slightly by
time and place. The trials were separate as the two incidents were viewed as
distinct transactions. Even if the two incidents could be viewed as connected
so as to form parts of one transaction it is obvious that the offences were
distinct and required different charges. The assault on Tikam in fulfillment of
the common object of the unlawful assembly was over when the unlawful assembly
proceeded to the house of Tikam to loot it. The new common object to beat Puran
was formed at a time when the common object in respect of Tikam had been fully
worked out and even if the two incidents could be taken to be connected by
unity of time and place (which they were not), the offences were distinct and
required separate charges. The learned Sessions judge was right in breaking up
the single charge framed by the magistrate and ordering separate trials. In
this view the prior acquittal cannot create a bar in respect of the conviction
It was contended by Mr. Tewatia that the
earlier judgment involved almost the same evidence and the reasoning of the
learned judge in Puran's case destroys the prosecution case in the present
appeal. He attempted to use the earlier judgment to establish this point. In
our opinion he cannot be allowed to rely upon the reasoning in the earlier
judgment proceeding as it did upon evidence which was separately recorded and
separately 680 considered. The eye witnesses in this case are five in number,
while in the other case there were only two, but that apart, the earlier
judgment can only be relevant if it fulfills the conditions laid down by the
Indian Evidence Act in ss. 40-43. The earlier judgment is no doubt admissible
to show the parties and the decision but it is not admissible for the purpose
of relying upon the appreciation of evidence. Since the bar under s. 403
Criminal Procedure Code did not operate, the earlier judgment is not relevant
for the interpretation of evidence in the present case.
Mr. Tewatia attempted to argue on the facts
of this case but we did not permit him to do so because this Court, in the
absence of special circumstances, does not review for the third time, evidence,
which has been accepted in the High Court and the Court below. No such
circumstance has been pointed out to us to make us depart from the settled
practice. The appeal therefore fails and is dismissed.