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PETITIONER: BHAJAN SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT31/08/1978

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. SINGH, JASWANT

CITATION:  1978 AIR 1759            1979 SCR  (1) 527  1978 SCC  (4)  77  CITATOR INFO :  R          1992 SC 891  (20)  R          1992 SC1011  (11)

ACT:      Evidence-Appreciation of evidence in cases of Statutory appeals under  s. 2(a)  of the Supreme Court (Enlargement of Criminal Appellate  Jurisdiction) Act,  1970 by  the Supreme Court-Supreme Court  is a  court of appeal under the Act and has got  to go into all the questions of fact and law and of fact  and  law  and  decide  cases  on  merits,  unlike  its jurisdiction under Art. 136 of the Constitution.      Right of  private defence  of  property-onus  to  prove right of  private defence  is on the defence-S. 97, Secondly read with s. 99 of the Penal Code 1860 (Act XLV), Penal Code s. 149 scope of.

HEADNOTE:      Eight accused  including the  five appellants  in  this appeal  were   charged  and   tried  for   various  offences punishable under  the Penal  Code, for  rioting being  armed with deadly  weapons and for causing the death of one Pakhar Singh by  inflicting grievous hurt and simple hurt to Pritam Kaur (PW-3), his wife. The case of the prosecution as to the motive was  that Pakhar Singh, the deceased file(l on 28-10- 69 a  declaratory suit  claiming certain lands as his, while his sister  also claimed the said lands as hers and; that on the date of the incident the suit was pending and an interim order was  passed to  the effect that the parties had agreed in respect  of the  question of  possession that  status quo will be  maintained; and  that  an  exparte  injunction  was issued in  favour of  the deceased;  that the accused by the strength of  numbers wanted  to conclude  the litigation  by taking forcible possession and therefore with weapons hidden in the field caused grievous injuries to Pakhar Singh out of which injury No. I was opined by the doctor as sufficient to cause death in the ordinary course of nature. The Additional Sessions Judge,  Patiala found the accused not guilty of the various offences  and acquitted them all. But the High Court in appeal  by the State against the acquittal maintained the acquittal in respect of three accused but reversed the order of acquittal  of the  appellants and convicted them under s. 302/149, 325/149,  323/149 and  IPC and  sentenced  them  to

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imprisonment for  life and a fine of Rs. 1,000/- each for an offence under  s.  302/149.  They  were  also  sentenced  to rigorous imprisonment for 2 years, 1 year and six months for the offences under s. 325/149, 148 and 323/149 respectively. Hence the  statutory appeal  under s.  2(a) of  the  Supreme Court (Enlargement  of Criminal Appellate Jurisdiction), Act 1970.      Allowing the appeal partly the Court ^      HELD: (1)  By s. 2(a) of the Supreme Court (Enlargement of Criminal  Appellate Jurisdiction)  Act, 1970  any accused who has been acquitted by the trial court, but, on appeal by the State  convicted and  sentenced by  the High  Court,  as specified in the section is entitled, as of right, to appeal to the  Supreme Court.  As a  Court of  appeal, the  Supreme Court has  got to  go into all the questions of fact and law and decide  the case on its merits. The question, therefore, whether the  High Court  rightly  interfered  on  sufficient grounds or 528 not  in  a  State  appeal  against  acquittal  will  not  be material. A  right of appeal has been provided under s. 2(a) of the  Act and  this Court  has to  decide the  case on its merits. The  decisions regarding the scope of appeal against an acquittal the powers of the High Court to interfere in an appeal against acquittal by the State, which may be relevant when the  Supreme Court  is acting  under Art.  136 are  not material in deciding an appeal by person whose acquittal has been set  aside by  the High  Court and  who is  entitled to prefer an appeal to the  Supreme Court. [537 B-E]      (2) Though the Court would be entitled, on the material on record to decide whether the question of right of private defence has  been established  or not  it is the duty of the defence to make the necessary material available. [535 B-CI      In the  instant case,  the plea  of  right  of  private defence of  property has  to be  negatived since the accused failed to produce any order vacating the stay (as claimed by them) or  any record  to show that they had raised the wheat crop. This  circumstance and  Ex..PE & PF extracts of Khasra Girdwari also probabilise the prosecution case. Three were 8 persons on  the field  harvesting the  crop and  having  the necessary weapons  to repel  any protest by the deceased. If the accused were in possession, it is most unlikely that the deceased and  his wife  alone would  go into  the  field  to disturb the possession. [534 F, 535 C-D]      (a) In  determining what offences any accused is guilty of it  is necessary  to  consider  the  injuries  that  were inflicted on  the deceased.  The doctor  who con  ducted the autopsy found that the deceased had 8 injuries. According to the doctor  injury no.  I was  sufficient  in  the  ordinary course of  nature to  cause death  and injuries 2 to 8 could not collectively  normally cause  the death of Pakhar Singh. Whoever caused  injury No.  1 would  be guilty of an offence punishable under s. 302. [535 G, H, 536 A, B, C]      (b) In  the background  of the  incident and  all other circumstances it  is clear  that the  common object  of  the unlawful assembly  was to cause grievous hurt with dangerous weapons, an  offence punishable  under s. 326 IPC only. [536 D,F]      (c) None  of  the  appellants  have  been  specifically charged for an offence punishable under s. 302 and it cannot be held  that they are guilty of causing the injury which is "sufficient in  the  ordinary  course  of  nature  to  cause death". The  injury was  not caused  in prosecution  of  the common object  of the  assembly or  that the  members of the

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assembly knew  it likely  to be caused in prosecution of the common object. [536 E-F]      (d) The  prosecution has  proved the  case  beyond  all reasonable  doubt   and  the   eye  witnesses  were  natural witnesses and their testimony is acceptable. [534 B] OBSERVATlONS:      The Court  set aside the conviction and sentences under s. 323/149  and in lieu of the conviction and sentence under s. 302/149  convicted them  under Section 326 r/w S. 149 and sentenced the  appellants to  7 years  rigorous imprisonment and a  fine of Rs. 1,000/- each. The conviction and sentence under the  counts under  Section 325 r/w S. 149 and under S. 148 were, however, main tained.l 529

JUDGMENT:      CRlMlNAL APPELLATE  JURISDlCTION: Criminal  Appeal  No. 194  of 1975.      From the  Judgment and  order dated  17-5-1975  of  the Punjab and  Haryana High Court in Criminal Appeal No. 636 of 1971.      N. C.  Talukdar (For  appellants 1-4), Anil Kumar Gupta (for appellant No. S) and Mr. Uma Datta for the Appellants.      Hardev Singh and R. S. Sodhi for the Respondent.      The Judgment by the Court was delivered by      KAILASAM, J.  The five  appellants have  preferred this appeal under  section 2(a) of the Supreme Court (Enlargement of Criminal  Appellate Jurisdiction)  Act,  1970,  from  the judgment and  order of  the High Court of Punjab and Haryana in Criminal Appeal No. 636 of 1971.      The five  appellants and  three others were charged for various offences, punishable under the Indian Penal Code for rioting armed  with deadly weapons and for causing the death of one  Pakhar Singh  inflicting grievous and simple hurt to Pritam Kaur  wife of Pakhar Singh on 17-4-1970 at about 7.30 A.M. in the village Bassi of Nurpur Bedi Police Station. The Additional Sessions  Judge, Patiala,  found the  accused not guilty of  the various offences with which they were charged and acquitted them.      The State  of Punjab  preferred an  appeal to  the High Court of  Punjab and Haryana against the order of acquittal. The High  Court maintained  the acquittal  of three accused, Nikha Singh,  Binder Singh  and Jit  Singh but  reversed the order of  acquittal of  the appellants  and  convicted  them under section  302/149, 325/149  and 323 /149 and 148 I.P.C. and sentenced  them to  imprisonment for  life and a fine of Rs. 1000/-  each for  an offence under section 302/149. They were also  sentenced to rigorous imprisonment for 2 years, I year and months for the offences under sections 325/149, 148 and 323/149 I.P.C. respectively.      The case  for the  prosecution is that there was enmity between the  deceased Pakhar  Singh and  Nand Singh  and his family due  to the  land in  dispute. One  Bhagtu, father of Pakhar Singh,  was the  owner of  the land in dispute in the village of  Bassi. After his death, a dispute arose over the property between  the deceased  Pakhar Singh  and  his  step sister Jaggir  Kaur who is married to Nand Singh. Nand Singh and Bhajan  Singh, appellants  Nos. 1 and 2, are the sons of Dharam Singh,  the third  appellant. Dharam  Singh’s nephew, Jhaggar Singh,  is the  fourth appellant. It is the admitted case of  the parties  that there  was a  litigation  between Pakhar Singh on the one side and Jaggir Kaur on 530

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the other  relating to  the title and possession of the land in dispute. Proceedings were taken by the parties before the authorities for  registration in the revenue records. On 28- 10-1965, Pakhar Singh instituted a suit in the court of Sub- Judge, 1st  Class, Ropar  for a  declaration that  he is the sole owner  of the  land and that the defendant had no right or interest in the land or in the alternative for possession of the  land as  owner. On  27-12-1969, the  Court passed an interim order  on an  agreement between  the parties  in the following terms:-           "It is  agreed  in  respect  of  the  question  of      possession  that   status  quo   will  be   maintained.      Therefore ex-parte  injunction issued  in favour of the      plaintiff  stands  modified  to  the  extent  that  the      parties  will   maintain  status   quo  in  respect  of      possession."      The prosecution  also filed  Ex.  PF  an  extract  from Khasra Girdawri, relating to village Bassi which showed that the deceased  Pakhar Singh was the owner of the land and was cultivating it with wheat and gram crop during the rabi crop for the  year 1970.  According to  the  prosecution,  Pakhar Singh had  sown wheat  crop and  he and his wife went to the field at  7.30 A.M.  On 17th April, 1970 to harvest the crop where they  found all  the accused cutting and gathering the crop. The  deceased protested  and tried to stop the accused from removing  the crop,  but they  did not  listen.  Pakhar Singh reminded them that the court decision is in his favour but the accused took up the weapons which they had concealed in  the   wheat  crop  and  started  beating  the  deceased. According to the prosecution, the five appellants were armed with Kulharas,  Bhajan Singh  with a  barchha and  the three acquitted accused  with lathies.  The accused  attacked  the deceased and  during the  melee, Pritam  Kaur, wife  of  the deceased, who  is examined  as  P.W.  3  in  the  case  also sustained injuries.  Hearing the  noise, Arjun Singh, P.W. 4 and Tota  Ram, P.W.  S who  were harvesting their crops in a nearby field  belonging to  them, came  to the scene and saw the beating  of the  deceased by the accused. Soon after the occurrence, the  accused ran away. Pakhar Singh was taken to the road-side  from where he was put in a bus and carried at Nurpur Bedi.  Pritam Kaur  went to  the Police  Station  and lodged a  report at  11 A.M.  As no  doctor was available at Nurpur Bedi,  the injured  was carried  in a  taxi to  Ropar hospital but  before medical  aid could  he rendered to him, Pakhar Singh died.      The prosecution  relied on  the evidence of the injured eyewitness,  P.W. 3, and two other eye-witnesses who came to the scene  at the  time of  occurrence, i.e.,  P.W. 4 and 5, Arjan Singh  and Tota  Ram. The  trial  court  rejected  the testimony of the eyewitness and acquit- 531 ted the  accused. The  High Court found that the evidence of P.W. 3,  A 4 and 5 is trustworthy and the trial court was in error  hl   rejecting  their   testimony.  It   found,   the prosecution has  established its  case beyond all reasonable doubt so  far as  the appellants are concerned and convicted them for various offences.      The question  that arises  for  consideration  in  this appeal before  us is,  whether the prosecution has succeeded in  proving  the  case  against  the  appellant  beyond  all reasonable doubt.      P.W. 3  is the widow of the deceased, Pakhar Singh. The doctor, Shrimati  B. Kalra, Medical officer, Civil Hospital, Ropar,  who   examined  Pritam  Kaur,  gave  her  the  wound certificate which  is marked  as Ex. PB. She had 10 injuries

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on her  person. The first injury is a fracture in the middle of the  right index  finger  which  is  a  grievous  injury. Injuries 2  to 10  are simple  and were  caused due to blunt weapon. The injuries clearly show that P.W. 3 was present at the scene.  The fact, that immediately after the occurrence, she, along with P.W. 4 and 5, took the injured to the Police Station and lodged the First Information Report, establishes that the  prosecution version  was  made  available  at  the earliest possible  time. The  First Information  Report  was given at  11.20 A.M. at the Police Station which is four and a half  miles from  the. village.  According  to  the  First Information Report,  when P.W.  3 and  her  husband,  Pakhar Singh, were  going to harvest wheat crop, the appellants and three others  were already  harvesting tile  wheat crop from the same  field. P.W.  3 asked  them as  to  why  they  were harvesting the wheat crop when a dispute regarding the joint Khata was  going on  between them,  and they  had obtained a stay order  from the  court and  the wheat  crop belonged to them  as  they  were  the  owners,  the  appellants  started attacking  Pakhar   Singh.  The   First  Information  Report mentions that  Gurnaib Singh  dealt a Kulhara blow to her on her right  index finger  and  the  appellants,  Nand  Singh, Bhajna, Dharam Singh and Jhagar Singh dealt Kulharas, Lathis and barchha  blows on  the head,  eyes and  both the legs of Pakhar Singh. The first Information Report also mentions the presence of  Tota Ram,  P.W. 5  and Arjan  Singh, P.W.  4 as having come  there on  hearing the  noise  and  rescued  the witness and  Pakhar Singh.  The evidence  of these witnesses was sought  to be  discredited by  the trial court mainly on the ground  that  her  statement  before  the  investigating officer belies  the prosecution  version. According  to  the A.S.I., Bhagat  Singh, who  was  examined  as  P.W.  10,  he recorded a  statement from  Pritam Kaur  on the  18th  April 1970. According  to the  statement, only  four persons, Nand Singh, Dharam  Singh, Bhajan  Singh and  Jhagar  Singh  were named as the assailants. The story given in the statement is different 532 from the  prosecution case  that was  set up  in  the  First Information Report  and at  the  trial,  P.W.  3  vehemently denied having  made any statement on the 18th April 1970. It may be  noted that  after P.W.  3 gave the First Information Report, she  was  examined  at  the  inquest.  There  is  no material on record to show that the statement, recorded from P.W. 3  at the  inquest,  is  at  variance  with  the  First Information Report. The contention of the State is that P.W. 10, Bhagat  Singh, A.S.I. had falsely introduced a statement with a  view to  help the culprits and spoil the prosecution case.  The   High  Court   accepted  the   plea  and   found considerable merit  in the contention of the learned counsel for the  State. The High Court pointed out that Pritam Kaur, having named  all the  accused as  assailants in  the  First Information Report  and having  reiterated this  position in her statement  in the  inquest proceedings,  would not  have given a  different  version  to  the  Police  officer  in  a supplementary statement  recorded on  the 18th. The evidence of P.W.  10 discloses  that on  the evening  of the 17th, he prepared the  inquest report  during  which  proceedings  he examined P.W.  3 an(l recorded her statement. Later, he left for the  scene which  he reached  at  5.30  P.M.  In  cross- examination, the  witness stated  that he  had recorded  the statement of  Pritam Kaur  on 18th  April which is marked as Ex. DD.  The version  given by  P.W. 3 in this supplementary statement is  totally at variance with the prosecution case. It is  difficult to  perceive, under  what circumstances the

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police officer  came to  record a  supplementary  statement. Though the  statement of  the case by the A.S.I. is appended to the inquest report, the statement of Pritam Kaur recorded at the inquest is not made available. There is no difficulty therefore, in  coming to  the conclusion that, the statement of Pritam Kaur during the inquest was in accordance with the First Information  Report. We agree with the High Court that the supplementary  statement, recorded  by P.W.  10, is  not entitled to  any weight  and that  it  cannot  be  used  for discrediting the  testimony of  Pritam Kaur. The trial court was clearly  in error in rejecting Pritam Kaur’s evidence on the basis  of the  supplementary statement  alleged to  have been recorded from her by P.W. 10.      Another reason  given for  rejecting the  testimony  of P.W. 3  by the trial court is that though P.W. 3’s daughter, Ranjit Kaur,  was present  and sustained injuries, that fact was concealed in the First information Report. In the Report appended by P.W. 10 to the Inquest Report, he mentioned that Pritam Kaur had got entered the report at the police station to the effect that when she and her daughter Ranjito went to their field  for harvesting  the wheat  crop,  four  accused inflicted injuries  on her, her daughter and her husband. It is not  disputed that  the First Information Report not only mentions the four accused but all the 533 Others. It  is again  clear that  in the  First  Information Report, there is no mention of the presence of her daughter, Ranjit Kaur  or her  sustaining any injuries. The High Court rightly observed  that Pritam  Kaur had denied having made a statement to  the Police  that Ranjit  Kaur accompanied them and received  injuries and  that there was no reason for her concealing it when she gave the First Information Report. As the High  Court rightly  points out  that if Ranjit Kaur was present and  sustained injuries,  she would have been a very valuable eye-witness  and her  presence would  not have been omitted. We agree with the conclusion of the High Court that the presence  of Ranjit Kaur and her sustaining injuries was introduced  by   the  Police  with  a  view  to  damage  the prosecution case.  On a  consideration of  the  evidence  of Pritam Kaur,  we find  that she  is a  thoroughly dependable witness It  is only natural that she accompanied her husband to the  field where  wheat crop  had been  raised.  She  had sustained several  injuries and there could be no difficulty in coming  to  the  conclusion  that  she  was  present  and witnessed the  occurrence during  which  she  sustained  the injuries. Taking  into  account  the  fact  that  the  First Information Report  was given with the utmost expedition and that all  the, relevant  particulars such as the name of the accused, the  weapons which  were used  and  the  part  they played have  all  been  mentioned,  we  see  no  reason  for rejecting her testimony. The fact that she had not mentioned the details such as which accused caused which injuries does not affect  the credibility  of her version. Her husband was in a  critical condition  and it  is too much to expect that the report  she gave at that time should contain all details about weapons  and the  injuries that  were  caused  by  the several accused.      The evidence of the two other eye-witnesses, P.W. 4 and 5, Arjan Singh and Tota Ram, was rejected by the trial court on the  ground that  their evidence was materially different from the statement made to the Police as, in their statement to the  Police, they  had only  named four  accused while in their evidence  they would  include three  more persons.  We find that  the statement,  alleged to  have been recorded by P.W. 1(),  is not  entitled to  much weight. The evidence of

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these two  witnesses was  attacked on  the ground  that  the field, in  which the  two  witnesses  were  supposed  to  be harvesting their  wheat crops,  was far  away and  that they could  not  have  witnessed  the  occurrence.  It  was  also submitted that  there was a Gurdwara between their field and the field  in which  the occurrence  took place but the High Court considered  the points raised and found that there was no obstruction  between the field in which they were working and the  scene of  occurrence and  that when  the noise  was heard they  left their field and moved towards the scene and that there could be no difficulty in accepting the testimony of 534 P.W. 4  and 5  According to  P.W. 4, he and Tota Ram reached the place  of occurrence  on hearing  the accused and Pakhar Singh quarrelling.  On the  way they  observed the  accused, injuring Pakhar Singh and Pritam Kaur. It is also clear that both the  witnesses accompanied  Pritam Kaur and the injured as  the   First  Information   Report  discloses   that  the informant, Pritam  Kaur came along with Arjan Singh and Tota Ram and  appeared at the Police station and got recorded the First Information Report. On a consideration of the evidence or P.Ws.  3, 4  and 5,  the eye-witnesses,  we are satisfied that they  arc natural witnesses and that their testimony is acceptable.  Agreeing   with  the  High  Court  we  have  no hesitation in  finding that  the prosecution  has proved its case beyond all reasonable doubt.      The only  question that  troubles us  in this appeal is about the  possession of  the wheat field at the time of the occurrence. If  the accused  were in possession of the field and the  deceased came  to disturb that possession, the case would take  an entirely  different complexion.  It is common ground that  there were  disputes regarding  the land.  Both parties were  trying to  get the ’patta’ registered in their name.  The   Commissioner  of   Patiala  Division   in   the proceedings under  the Punjab  Land Revenue  Act found that, Jaggir Kaur  and her  mother Ram Kaur were in possession for 20 years  but, whether the suit land was under consideration before the  Commissioner is not very clear. A suit was filed by Pakhar Singh, deceased, on 28-10-1969. On the date of the incident, the  suit was  pending and  an interim  order  was passed to  the effect that the parties had agreed in respect of the  question of  possession  that  status  quo  will  be maintained and  therefore  ex-parte  injunction,  issued  in favour of  the deceased, stands modified to the extent that, parties will  maintain status  quo in respect of possession. This would indicate that, there was an agreement between the parties as  a result  of which  the order  of injunction was modified but  from this  order it is not clear as to who was in  possession.  Two  material  documents,  that  very  much support the  prosecution case  regarding possession, are Ex. PE and  PF. Ex. PE is an extract from Khasra Girdawri papers relating to  the land  in question,  Khasra 23/11/2,  in the village of  Bassi; Pakhar Singh is entitled as co-sharer and it is  stated that  he has  raised kharif  crop for the year 1963 and  rabi crop for the year 1964. In Ex. PF, an extract from Khasra  Girdawri relating  to the  land, it  is entered that Khasra  No. 23/11/2, the owner is Pakhar Singh and that he is  the cultivator  and co-sherer  and that he has raised wheat and  gram in  the rabi  crop for  the  year  1970  The occurrence was on 17th April 1970 and the evidence of P.W. 3 on this  point is  that her  husband and  she had raised the wheat crop.  In fact  she admitted  that there was a dispute between Pakhar Singh and Nand Singh about the land which 535

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Pakhar Singh’s  father left.  While she  admitted that there was dispute  about the land, she stated that her husband had filed a  suit against  Jaggir Kaur  and stay  order had been granted by  the court  in favour of Pakhar Singh. She denied that the  stay order  was vacated  before the  occurrence or that the  court had  ordered that the party in possession of the land  should  harvest  the  crops.  We,  find  that  the evidence of  P.W. 3 that the Civil Court had granted stay in favour of  the plaintiff  and that  they had raised the crop and  went   to  the   field  in  question  for  agricultural operations stands  unrebutted by  the  defence.  Though  the court would  be entitled,  on the  material  on  record,  to decide whether, the question of right of private defence has been established  or not,  it is  the duty of the defence to make the  necessary material  available. They have failed to produce any  order vacating  the stay  or any record to show that they  had raised the wheat crop. The circumstances also probabilise the  prosecution case.  There were  8 persons on the field  harvesting the  crop and having necessary weapons to repel and protest by the deceased. If the accused were in possession, it  is most  unlikely that  the deceased and his wife  alone  would  come  into  the  field  to  disturb  the possession. On  a close  scrutiny of the material on record, we are satisfied that there are no grounds for not accepting the conclusion  of the High Court that the possession of the deceased and  his wife were disturbed by the accused. In the result, the plea of right of private defence of property has to be negatived.      The question  now remains  as to  what are the offences for which  the accused  could be  convicted. The parties are closely related  and the  dispute was  actually between  the brother and  the sister,  the brother, claiming the property as his  own, while  the sister, supported by her husband and his brothers  claiming that it belonged to the sister. There was litigation  in various  courts and  there were  disputes about the  actual possession.  Obviously,  the  accused,  by strength of  number, wanted  to conclude  the litigation  by taking  forcible   possession.  There   could  be  no  doubt therefore that,  they trespassed  into the  land and  caused injuries to  Pakhar Singh  which ultimately  resulted in his death. Pritam  Kaur was  also injured.  In determining  what offences the  accused are  guilty of,  it  is  necessary  to consider the  injuries that  were inflicted on the deceased. The  doctor,   who  was   examined  before   the  Committing Magistrate and  whose evidence  was marked  in the  Sessions Court, found  that the  deceased had  eight injuries. Injury No. I  was an  incised wound  3" x  1/2" x 3/4" on the right side of  the scalp  4" above  the left  ear, almost vertical bone underneath  cut and  fractured; comminuted  fracture of left parietal  left temporal  bone extending  to frontal and occipital. Front parietal suture opened. This 536 injury, according  to the  doctor,  was  sufficient  in  the ordinary  course   of  nature  to  cause  death.  The  other injuries, 2  to 6  are contusions and 7 and 8 are abrasions. Injuries 2,  3, 4 and 5 are below the knee on the right knee cap. Injuries  2 to  5 are  contused wounds  below the right knee injuring  the bone.  The bone  was fractured  to pieces Injuries 2  and 3  are on  the right  leg  below  the  knee. Injuries Nos.  4, 5  and 6  are contusions  on the  left leg below the  knee. The  bone below the left knee and the right knee are  factured into  pieces. Injury  No. 7  an  abrasion horizontal 2"  left side  of back  at the  crest of the left iliac bone.  The doctor was of the view that injuries 2 to 8 could not  collectively normally  cause the  death of Pakhar

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Singh. We  agree with  the doctor  that the  injury No. 1 is sufficient in  the ordinary  course of nature to cause death and whoever  caused the  injuries  would  be  guilty  of  an offence punishable under section 302. The other injuries are mainly below  the knee  on  the  right  and  the  left  legs resulting in the fracture of the bones. In the background of the incident,  it is  clear that  due to  the anxiety of the accused to harvest the wheat crop the occurrence took place. Taking, into  account all  the  circumstances  we  find  the common object  of the  unlawful  assembly  was  to  cause  a grievous hurt.  It has  to be  considered  whether  all  the accused should  be found  guilty of  an  offence  punishable under section  302, 149, for the injury caused by one of the members of  the unlawful  assembly  which  is  found  to  be sufficient in  the ordinary course of nature to cause death. None of  the appellants  has been specifically charged under section 302 and it is therefore not possible to hold any one of the  appellants guilty  of causing  the injury  which  is sufficient, in  the ordinary  course  of  nature,  to  cause death. We are also not satisfied from the circumstances that the injury was caused in prosecution of common object of the assembly or  that the members of the assembly knew it likely to be  caused in  prosecution of  the common  object.  On  a consideration of all the circumstances we are satisfied that the common  object of  the unlawful  assembly was  to  cause grievous  injury   with  dangerous   weapons,   an   offence punishable under  section 326.  We, therefore, set aside the conviction and  sentence, imposed  on the  appellants, under section 302/149  but instead  find them guilty under section 326/  149   and  sentence   them  to  seven  years  rigorous imprisonment and  a fine of Rs. 1000/- each,, and in default to  undergo  a  simple  imprisonment  for  six  months.  The convictions under  section 325/149,  regarding the  injuries caused to  Pritam Kaur, P.W.3, is confirmed. The sentence of 2 years  rigorous imprisonment,  imposed on  the appellants, for an  offence under  section 325/149, for causing injuries to P.W.  3, is  confirmed but,  as the  prosecution has  not established the  presence  of  the  daughter,  Ranjito,  the conviction, under section 537 323/149 regarding  the causing  of injury  to her,  and  the sentence .  imposed for  the  offence,  is  set  aside.  The conviction of the accused under section 148 is confirmed.      Before concluding  the judgment  we would  refer to the plea of  the accused  that the  High Court  was in  error in allowing the  appeal against  acquittal without  substantial and compelling  reasons. We  do not  think, the  decision of this Court,  relating to  the grounds  on  which  an  appeal against the acquittal could be allowed by the High Court, is relevant, for,  this appeal  is under  section 2(a)  of  the Supreme   Court    (Enlargement   of    Criminal   Appellate Jurisdiction) Act,  1970. By  this section  the accused, who has been acquitted by the trial court, but, on appeal by the State,  convicted  and  sentenced  by  the  High  Court,  as specified in  the section,  is entitled,  as  of  right,  to appeal to  this Court.  As a  court of appeal this Court has got to  go into all the questions of fact and law and decide the case  on its  merit. after  a right  or appeal  has been provided under  the said  section, the question, whether the High, Court  interfered on  sufficient grounds  or not, will not be material, as this Court has to decide the case on its own merits.  The decisions,  regarding the  scope of  appeal against an  acquittal, the  powers  of  the  High  Court  to interfere in an appeal against acquittal by the State, which may be  relevant when the Supreme Court is acting under Art.

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136, are  not material  in deciding  an appeal  by a person, whose acquittal  has been  set aside  by the High Court, and who is entitled to prefer an appeal to this Court. S.R.                                 Appeal allowed in part. 538