Sukhbir
Singh Vs. State of Haryana [2002] Insc 88 (20 February 2002)
R.P.
Sethi & K.G. Balakrishnan
(with
Crl.A.No.257 of 2002 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 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 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 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 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 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 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 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.
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