REPORTABLE

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

J U D G M E N T  

S.B. SINHA, J :

1. The 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.

2. Sarwan 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

Code”) for causing death of one Lamber Singh and simple hurt to one Avtar  

Singh.

3. The 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.

4. Avtar  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.

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5. Lamber 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 a.m.

6. All 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.

7. Relying  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 Code.

8. Three appeals were preferred thereagainst, viz.,

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(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.   

9. By reason of the impugned judgment, the High Court has allowed the  

appeal preferred by the respondents and passed a judgment of acquittal.

10. The 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.

11. Indisputably, Sarwan Singh and Jagtar Singh died on 5.02.2002 and  

4.11.2000 respectively, i.e., during pendency of the appeal.

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12. Mr. Naresh K. Sharma, learned counsel appearing on behalf of the  

State, would contend:

(i) Respondents  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 Trial Judge.

(iii) There was furthermore no reason as to why the evidence of PW-1  

also could not have been relied upon.

(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.

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13. Dr. I.B. Gaur, learned counsel appearing on behalf of the respondents,  

however, would support the impugned judgment.

14. Before adverting to the contentions raised by Mr. Sharma, we may  

notice the medical evidence.

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  

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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 deceased:

“1. Diffuse 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.

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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.

15. Indisputably,  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.

16. From 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  

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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.

17. According  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.

18. Why 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.   

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19. The 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 night itself.

20. If 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 mentioned.

21. It 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  

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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.

22. It  is  well  settled  that  there  exists  a  distinction  between  common  

intention and common object.   

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  

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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.

25. Respondents  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 dismissed.

………………………….J. [S.B. Sinha]

..…………………………J.     [Dr. Mukundakam Sharma]

New Delhi; May 06, 2009

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