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PETITIONER: HARI SINGH ETC.

       Vs.

RESPONDENT: STATE  OF HARYANA

DATE OF JUDGMENT13/04/1993

BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) ANAND, A.S. (J)

CITATION:  1993 SCR  (3)  61        1993 SCC  (3) 114  JT 1993 (3)    73        1993 SCALE  (2)490

ACT: Constitution of India 1950: Article  136-Does not confer right of appeal-Only  right  to apply, for special leave to appeal. Indian Penal code: Sections.  148,  149,  302, 304 Part  II  and  323-Different accused  when held to have neither common object  or  common intention-Held guilty of offence under Section 323. Practice and Procedure SLP  of Co-accused rejected-Effect of SLP on other  accused- Doctrine of stare decisis-Applicability of.

HEADNOTE: The three appellants In the two appeals along with 3 others, were tried for having committed murder.  One of the  accused being  a  minor, his trial was separated so  that  the  same could he conducted by the Children Court. The   case  of  the  prosecution  was  that  on  the   night intervening 6th and 7th October, 1982 the deceased and PW16. who  was  the first cousin of the deceased,  were  returning after  witnessing Ram Leela.  At that time the  aforesaid  5 accused  were  also.  returning from the  show  and  it  was alleged  that they teased some girls of the village who  had also  gone to see the Ram LeeLa, and that the  deceased  and PWI6’ objected to this behaviour of the accused persons.  On this  the accused persons abused them which was followed  by exchange of abuses from both the sides.  PW13 intervened and pacified  them.  Next day at about 2.30p.m.the deceased  and Pw16 went to their flour mill to bring back 62 their  bullocks  and fodder cart.  Tub of the  accused  with Pharsas,  one  with a Ballam, and three others  with  sticks came there.  One of the accused abused the deceased and Pw16 saying that they would teach them a lesson for abusing  them the previous night.  Having said so one of the accused  gave a  pharsa  blow  from  the blunt side on  the  head  of  the deceased.   The other gave a pharsa blow on the head of  the deceased.PW16raIsed an alarm and the remaining accused  gave blow to PWI6.  PW16 also got a blow of Ballam from the blunt side  on his head.  Thereafter an alarm was raised  and  all the accused persons fled away from the place of occurrence. The victim was taken to the local Hospital on a tractor  and

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thereafter  he was referred to A.I.I.M.S., New Delhi,  where PWI  examined  him and also sent information to  the  police post at about 4.15 p.m. The victim reached the A.I.I.M.S. at about 7.25 p.m. where he was examined.  A.S.I., PW17 who had got  the  information  about  the  occurrence  went  to  the Institute and the statement was recorded.  PW17 took up  the investigation.   The victim died in the Institute  the  next morning at 7.00 a.m. The postmortem examination was held  by PW15 on 8th October, 1982 at 4.30 p.m. on 12th October, 1982 PWI  examined one of the accused Suresh under the orders  of judicial  Magistrate  and  he made a  report  regarding  the injuries he had received the duration of the time in respect of the injuries which he stated was 3 to 6 days. The  five  accused were put up for trial,  and  the  Session Judge convicted and sentenced all these accused for offences under  Section 302 read with 149, Sections 148 and 323  read with  Section  149 to imprisonment for life.The  High  court having  dismissed their appeals, the three appellants  filed two appeals to this Court. In  the appeals to this court it was contended on behalf  of the  appellants that on the materials on record  the  Courts below   should  have  come  to  the  conclusion   that   the prosecution had suppressed the real manner of occurrence and had  disclosed a version of the occurrence which  cannot  be accepted.   It  was  pointed out  that  the  accused-Suresh, Vijender  and  Virender were the sons of accused  Hari  Sing who  was  age d  about  60 years, and  that  it  was  highly improbable on the part of , Hari Singh to join his sons  for committing the murder of the deceased- 63 Mange Ram who had protested about the behaviour of his sons. It was submitted that in view of the admitted position  that the residential unit, and the tube-well being by the side of the flour mill of the deceased there was no question of  the accused  persons going to the flour mill of the deceased  to assault  the  deceased and PWI6.  It was  further  submitted that  in  the First Information Report the name  of  accused Suresh was mentioned in connection with the previous night’s incident  and  that he and Satbir gave pharsa blows  on  the head of the deceased, that PW 16 modified his version of the FIR in court by saying that the injuries on the head of  the victim  were caused by the back side of the pharsa and  that this  improvement was introduced after it was  found  during the postmortem examination that injuries had been caused  by application  of blunt force which was inconsistent with  the case of assault on the head of the deceased by pharsa. The State raised an objection that in view of the  dismissal of  the  Special Leave Petition of the  two  accused  namely Suresh  and  Vijender against whom similar  allegations  had been  made, it was not open to this Court to  entertain  any plea  on behalf of the present 3 appellants because it  will be  deemed that while dismissing the special leave  petition this  Court had affirmed the findings recorded by the  Trial court  and  the  High  Court in respect  of  the  manner  of occurrence   and  participation  of  the   accused   persons including the 3 appellants. Allowing  the  appeals  in  part,  and  setting  aside   the convictions  of the appellants under Section 302  read  with Section  149 of the Penal Code; under Sections 148  and  323 read with Section 149; this court, HELD:     1.  Appellant-Satbir convicted under  section  304 Part  II and sentenced to undergo rigorous imprisonment  for seven  years.   Appellant Gulbir convicted  for  an  offence under  Section  325  Penal code  and  sentenced  to  undergo rigorous imprisonment for three years.  Appellant Hari Singh

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convicted for an offence under Section 323 of the penal code and   sentenced  to  the  period  of  imprisonment   already undergone. (75-H, 76-A-B) 2  (a).   In  the  system of  the  justice  which  is  being administered  by  the Courts.  One of the  basic  principles which  has to be kept in view, is that Courts of  coordinate jurisdiction, should have consistent 64 opinions  in  respect  of an identical set of  facts  or  on question  of law.  If Courts express different  opinions  on the  identical  sets  of  facts or  question  of  law  while exercising the same jurisdiction, then instead of  achieving harmony  in  the judicial system, it will lead  to  judicial anarchy. (72-D-E) (b)  Before  any such principle is applied It must  be  held that  the earlier order passed by this Court dismissing  the Special  Leave  Petition  of the  co-accused  amounts  to  a judgement  or  an  affirmance of the findings  of  the  High Court, about the manner of the occurrence, participation  of the  different  accused persons and the  nature  of  offence committed by them. (72-F) 3.   Article 136 (1) of the constitution confers  overriding and extensive powers of granting special leave to appeal  or rejection thereof in the discretion of this Court.   Article 136  does  not confer a right to appeal, it confers  only  a right to apply for special leave to appeal, which taking all facts and circumstances into consideration may he granted or rejected.    Even  in  a  case  where  the   special   leave application  is rejected, the order of the High  Court  does not  merge In the Order of this Court, as is the case  while exercising  the  appellate power.  Similarly,  when  Special Leave   Petition  is  entertained  against  any   final   or interlocutory order this Court does not convert itself to  a Court of appeal. (72-D-H) Gian  Chand v.. Kunjbehanlal [1977] 3 SCC 317, referred  to. (76-E) 4.   It  is  a  basic principle  of  the  administration  of justice  that like cases should be decided alike.  It  is  a very  sound rule and practice otherwise on same question  of law  or  same set of facts different persons  approaching  a Court can get different orders. (73-D) 5.   The doctrine of precedent is not applicable to an order passed  by  this Court rejecting a Special  Leave  Petition. Any such order cannot be held to be stare decisis so that it is a binding on the Court. (73-F) 6.   Rejection  of  the  Special  Leave  Petition  gives   a finality to an 65 order of the High Court, Inasmuch as the same accused cannot file more than one Special Leave Petition.  But In rare  and exceptional  cases  this  Court has  exercised  power  under Article  32 of the Constitution so that there should not  he miscarriage  of justice and to avoid a direct  conflict  and confrontation between two orders of this court. (73-H, 74-A) Harbans  Singh  v. State of U. P., AIR 1982  SC  849;  Pyare Singh v.. State of Madhya Pradesh, [1992] SUPP 3 SCC 45  and (77-F)  A.R.  Antulay  v.. RS.  Nayak.  AIR  1988  SC  1531, referred to. (78-C) 7.   The mare rejection of the Special Leave Petition of co- accused  persons cannot seal the fate of the appeals of  the appellants  which have been entertained after  leave  having been  granted by this Court.  The appellants to  whom  leave has been granted can urge all questions within the framework of  Article  136 of the Constitution for  consideration.  by this  Court  and a relief to which such  appellants  may  be

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entitled cannot be denied to them merely on the ground  that a  Special Leave Petition In respect of  co-accused  persons with more or less similar charges, evidence and  convictions has already been rejected. (75-F- G) 8.   On the basis of the evidence of PW16, the informant, it cannot he said that the accused persons had an Intention  to cause  such injuries son the victim which may result In  his death.  When they caused the injuries from the blunt side of the  Pharsa  it  will  have to be  presumed  that  they  had knowledge that those Injuries can cause the death, but there was no intention on their part to cause death.  As such  the Trial Court and the High Court should not have convicted the appellants under Section 302 read with Section 149. (71-G-H) 9.   (a) On the materials on record in the Instant case, the prosecution  has not been able to prove and  establish  that the  appellants had the common object or shared  the  common intention  to  cause  the murder of the  victim.   From  the evidence of the prosecution Itself It appears that the flour mill of the deceased and the residential unit of the accused persons being adjacent to each other, suddenly a right  took place in which the appellant Satbir gave a blow by the  back side  (wooden part) of the Pharsa, which caused one  of  the two injuries on 66 the head of the deceased.  It cannot be held that  appellant Satbir  had an intention to cause the death of  the  victim. In  such  circumstances  it can be said  that  he  had  only knowledge  that such blow may cause an injury  resulting  in the  death of the victim.  He should have,  therefore,  been convicted  under  Section 304, Part-II, of the  Penal  Code. (75-C-E) (b)  So  far as appellant-Gulbir is concerned, according  to the  prosecution  case, he was carrying a stick  and  he  is alleged to have given a stick blow to the deceased on a non- vital part of the body.  In this background, he can be  held to have committed the offence only under Section 325 of  the Penal Code. (75-F) (c)  In  regard  to the appellant-Hari Singh,  he  was  aged about  60  years  at  the time of  the  occurrence  and  the prosecution case itself, is that he is said to have given  a stick  (lathi)  blow  to the informant PW  16.   He  is  not alleged  to  have given any blow to the deceased.   He  has, therefore,to  be  held  guilty for  an  offence  only  under Section 323 of the Penal Code. (75-G)

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  698/85 with 59/86. From  the Judgment and Order dated 30.4.1985 of  the  Punjab and Haryana High Court in Crl.  A. No. 345-DB of 1984. R.L. Kohli and Prem Malhotra for the Appellants in Crl.   A. No. 698/85. O. P. Sharma R.C. Gunbrele, K.R. Gupta, Mrs. Nanita  Sharma, Vivek Sharma and.  Kamaljeet Singh for the Appellant in Crl. A. No. 59/86. K.C. Bajaj and Ms. Indu Malhotra (NP) for the Respondent. The judgment of the Court was delivered by N.P.SINGH.  J One appeal is on behalf of Hari Singh and  the other  is on behalf of Satbir and Gulbir.  They were put  on trial along with 67 Suresh,  Vijender  and  Virender for  having  committed  the murder of Mange Ram on 7th October, 1982.  Virender being  a

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minor  his  trial  was separated so that  the  said  may  be conducted  by  Children Court.  The remaining  five  accused were convicted for offences under section 302 read with 149, Section  148  and Section 323 read with  149.   Sentence  of imprisonment  for  life  was imposed against  all  the  five accused  persons under Section 302 read with  149.   Whereas under Section 148 each one of them was sentenced to  undergo rigorous   imprisonment   for   one   year,   and   rigorous imprisonment  for three months under Section 323  read  with 149.  The Sentences were directed to run concurrently.   The High Court dismissed their appeal. Special Leave Petition (Criminal) No.2160 of 1985 was  filed on  behalf of accused Hari Singh, Suresh and Vijender.   On 23rd  September,  1985 this Court granted special  leave  to appeal  to  appellant  Hari Singh, but  dismissed  the  said Special  Leave  Petition  so far Suresh  and  Vijender  were concerned.   Leave  was  granted to  appellants  Satbir  and Gulbir  on a separate Special Leave Petition filed on  their behalf. The case of the prosecution is that in the night intervening 6th and 7th October, 1982 Mange Ram (hereinafter referred to as  "the  deceased") and Ram Kishan PWI6, who is  the  first cousin of the deceased, were returning after witnessing  the Ram  Leela.   At that very time  Suresh,  Satbir,  Vijender, Virinder  and  Gulbir were also returning  after  the  show. Near the baithak of Jit Ram, the accused persons teased some girls of the village who had also gone to see the Ram Leela. The  deceased  and PW 16 objected to the  behaviour  of  the accused persons towards the girls of their own village.   On this  it is said that the accused persons abused them  which was  followed  by exchange of abuses from  both  the  sides. Budhi PW 13 intervened and pacified them, Next day at  about 2.30 PM. the deceased and PW 16 went to their flour mill  to bring  back  their  bullocks and fodder  cart.   Suresh  and Satbir  with  Pharsas, Hari Singh with a  Ballam,  Virinder, Vijender  and Gulbir with sticks came there.  Suresh  abused the  deceased and PW16 saying that they would teach  them  a lesson for abusing them i.e. accused persons on the previous night.   Having  said so accused Suresh gave a  Pharsa  blow from  the blunt side. on the head of the  deceased.   Satbir also gave a Pharsa blow from the blunt side, on the head  of the deceased.  PW 1 6 raised an alarm Virinder, Vijender and Gulbir gave stick blows to the 68 deceased.   It is further the case of the  prosecution  that when PW16 tried to intervene Hari, Singh gave a Ballam  blow from  the blunt side on his head and Vijender gave  a  stick blow  on  the left elbow of PW16.  Thereafter an  alarm  was raised  and  accused  persons fled away from  the  place  of occurrence. The  victim  was  taken to B.K.  Hospital,  Faridabad  on  a tractor.   From  there he was referred  to  A.I.I.M.S.,  New Delhi, by Dr. O.P. Sethi PW 1.PW 1 also sent information to the  Police  Post No. 5, Faridabad, at about 4.15  P.M.  the victim  reached the A.I.I.M.S. At about 7.25 P.M.  where  he was  examined.  Raghbir Singh, A.S.I., PWI7 who had got  the information  about  the  occurrence at  the  Police  Station Chhainsa  at  5.35  P.M. the same evening  from  the  Police Station,  New  ’Township, Faridabad, went to  the  Institute aforesaid  and recorded the statement of PWI6 at  8.30  P.M. which was forwarded to the Police Station, Chhainsa, where a case was registered at 11.30 P.M. the same night PW 1 7 took up the investigation and visited the place of occurrence and collected  blood-stained  earth.   The victim  died  in  the Institute  the  next  morning at 7.00  A.M.  The  postmortem

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examination was held by PW 1 5 on 8th October, 1982 at  4.30 P.M.  He  found  three stitched wounds,  one  on  the  right varietal  region, second on the middle of the scalp and  the third on the left varietal region.  One out of three wounds, was   an  operational  (surgical)  wound.    From   internal examination,  fracture  of right occipital  bone  and  right frontal  base  was found.  He also found contusions  on  the right  thigh,  left  eye and left fore arm  of  the  victim. According to the opinion of PWI 5 the injuries found on  the deceased had been caused "by application of blunt force" and were sufficient in ordinary course of nature to cause death. The Pharsas from which according to the prosecution case the aforesaid  injuries had been caused, were shown to PW  1  5, the doctor, and he stated as follows:               "I  have seen the alleged weapon  of  offence,               Pharsa  EX.P. 1 and the ante  mortem  injuries               which   are  noted  on  the  head  cannot   be               inflicted  by  this weapon.  On  the  opposite               side  of  Pharsa,  there  are  two  projecting               devices  for holding the Pharsa  with  Bamboo,               having  a distance of 15 cm. from each  other.               Even if Pharsa EX.P. 1 is used from any of its               two sides (Between iron blade and the two iron               projections referred above) 69 even  then head injuries mentioned above are not  likely  to cause. At  this  stage another sealed parcel  containing  a  Pharsa EX.P.2  opened at  the instance of defence counsel.  It  was               found containing a Pharsa Ex.  P.2 1 have been               this  Pharsa also.  The distances between  two               projections holding iron blade with bamboos is               about  11.5  cm. and as such the  injuries  in               question  could not be caused by  this  weapon               also, either used iron blunt side or iron  any               of  the  two  sides,  as  stated  by  me  with               reference  to EX. P. 1 It is correct that  the               injury  No.  2. is  a  operational  (Surgical)               wound    which   correspond   with    internal               examination of head and corresponding piece of               bone was absent having a size of 12 cm.  X  10               cm." On  the  person of PWI6 only few superficial  injuries  were found. On  12th October, 1982 the aforesaid Dr. O.P. Sethi  PWI  of B.K. Hospital, Faridabad, examined accused Suresh under  the orders   of  Shri  Raj  Kumar,  HCS,  Judicial   Magistrate, Faridabad,  and found the following injuries on the  persons of Suresh:               "1.  A diffused and tender swelling over  back               of  left  hand  all over the wrist  joint  and               lower  half  of  left  fore-arm.   There  were               bluish  mark  of two bruises  (abraised,  each               1/2"  x  1/2" over back fore-arm).  Xray  were               advised  for left wrist joint including  lower               half  of the fore-arm and the hands.   It  was               advised  for posterior, interior  and  lateral               views.               2.    A  partially  healed injury 1 "  x  1/8"               placed  at the top of head 5" above the  pinna               of  right  ear.  X-ray advised  for  skull  in               superior view.               3.    A partially healed injury 3/4" x 1/8" at               the  left half of head 2" behind the  interior               hair line.  X-ray was also advised.

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             70               4.    A  liniar injury having 3/4" x  1/8"  at               right  half  of head, 1 1/2"  behind  interior               hair line.  X-ray skull was advised.               5.    A  vertical injury mark 2" x 1/2 at  the               left shin 5" 1/2 above left ankle joint." The  duration  of  the  time  in  respect  of  the  injuries aforesaid  was three to six days.  PWI stated in  the  Court that  accused  Suresh  had been medically  examined  at  the request  of the Police and a copy of the medical report  was also handed over to the Police. It  was  urged  on  behalf of the  appellants  that  on  the materials on record the Courts below should have come to the conclusion-that prosecution has suppressed the real  manner, of occurrence and has disclosed a version of the  occurrence which  cannot be accepted.  It was pointed out that  accused Suresh,  Vijender and Virinder are the sons of accused  Hari Singh  who was aged about 60 years, as such, it  was  highly improbable  on the part of Hari Singh to join his  sons  for commiting  the  murder of Mange Ram who  had  protested  the behaviour of the sons of Hari Singh, the previous night with the girls of the village.  From the evidence of Rang Lal PW7 it  appears  that  the flour mill of the  deceased  and  the fields of the accused persons are across the same road.  The tube  well of accused Hari Singh is situated  adjoining  the mill  where Hari Singh has also got tile  residential  unit. It was urged that in view of the admitted position that  the residential  unit,  tube-well are by the side of  the  flour mill  of the deceased there was no question of  the  accused persons  going to the flour mill of the deceased to  assault the deceased and PWI6.  The accused persons and the deceased both  having their flour mill and residential unit  side  by side, most probably clashed as a result of a sudden fight in which injuries were caused to the victim as well as to  PW16 on the side of the prosecution and on Suresh on the  accused side.   It  may be mentioned that in the  First  Information Report, only the name of Suresh, one of the six accused  was mentioned  in connection with the previous night’s  incident saying  that  he along with four or five  boys  were  coming after seeing the Ram Leela and then they started teasing the girls  and thereafter an exchange of abuses took place.   In the First Information Report it was also stated by PWI6 that accused Suresh and Satbir gave Pharsa blows on the 71 head of the deceased.  In the First Information Report PWI6, the  informant, did not state that the injuries on the  head on  the head of the victim were caused by the back  side  of the Pharsa.  On behalf of the appellants, it was pointed out that  this change was introduced after it was  found  during the postmortem examination that injuries had been caused  by application of blunt force’ which was inconsistent with  the case of assault on the head of the deceased by Pharsa. But  merely on the ground that PWI6, the informant. did  not mention the name of any other accused in connection with the previous  _night  incident  except Suresh or  in  the  First Information  Report having said that Suresh and Satbir  gave Pharsas  blows  on the head of the deceased.   Modified  the same in court by saying that they gave one Pharsa blow  each by  the  back  side of the Pharsa, his  evidence  cannot  be rejected  outright.   But at the same time the case  of  the prosecution   that  Hari  Singh  along  with  Five   accused including  a child. went to the flour mill of the  deceased, with an intention to cause the death of the victim,  because of the previous night abuses and altercations, also does not appear  to  be the real version of the occurrence.   If  the

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intention  of the accused persons was to commit the  murder, then they would not have given blows by the back side of the Pharsa  on the head of the deceased.  In  all  probabilities because of the previous night’s incident, at about 2.30 P.M. a  sudden  fight  took place, in which  accused  Suresh  and Satbir are alleged to have given blows from the back side of the Pharsa on the head of the deceased.  PW 15, the  doctor, who  held the postmortem examination, has stated that  those injuries had been caused "by application of blunt force" and has emphatically repudiated that injuries on the head of the deceased could have been caused by two Pharsas Ex, P. 1  and P2 which had been seized and shown to him during the  course of his examination.  The injuries from the back side of  the Pharsa can be said to have been caused by "blunt force". It has been rightly submitted that on basis of the  evidence adduced including the evidence of PW 16, the informant,  it cannot be said be said that accused persons had an intention to cause such injuries on the victim which may result in his death.  When they caused those injuries by the blunt side of the Pharsa it will be presumed that they had knowledge  that those  injuries  can  cause  the death,  but  there  was  no intention  on their part to cause death.  As such the  Trial Court and the 72 High  Court should not have convicted the appellants  under- Section 302 read with Section 149. On  behalf of the State an objection was taken that in  view of  the  dismissal of the Special Leave  Petition  filed  on behalf  of  two  accused Suresh and  vijender  against  whom similar  allegations had been made, it is not open  to  this Court  now  to  entertain any plea on behalf  of  the  three appellants  because it will be deemed that while  dismissing the  Special  Leave Petition filed on behalf of  Suresh  and Vijender  this Court has affirmed the findings recorded  by the  Trial court and the High Court in respect of manner  of occurrence   and  participation  of  the   accused   persons including  the  three appellants.  It was also  pointed  out that if any of the appellant is acquitted or the convictions and sentences imposed against them are altered in any manner it will lead to inconsistency in the different orders passed by this Court. It  is  true  that  system of the  justice  which  is  being administered  by  the Courts, one of  the  basic  principles which has to be kept in view, is that Courts of  co-ordinate jurisdiction, should have consistent opinions in respect  of an identical set of facts or on question of law.  If  Courts express different opinions on the identical sets of facts or question of law while exercising the same jurisdiction, then instead of achieving harmony in the judicial system, it will lead to judicial anarchy.  But before any such principle  is appliedit must be held that the earlier order passed by this Court dismissing the Special Leave Petition of the coaccused amounts  to a judgment or an affirmness of the  findings  of the  High  court,  about  the  manner  of  the   occurrence, participation  of  the  different accused  persons  and  the nature of offence committed by them. Article  136 (1) of the Constitution confers overriding  and extensive  powers  of granting special leave  to  appeal  or rejection thereof in the discretion of this Court.   Article 136  does  not confer a right to appeal, it confers  only  a right to apply for special leave toappeal, which taking  all facts and circumstances into consideration may be granted or rejected.  Even in a case where special leave application is rejected, the Order of the High Court does not merge in  the Order  of  this Court, as is the case while  exercising  the

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appellate  power.  Similarly when Special Leave Petition  is entertained against any final or interlocutory 73 order  this  court  does not convert itself in  a  court  of appeals.   It  was  said  in  the  case  of  Gain  chand  V. Kunjbeharilal,  [1977]  3 SCC 1 Chandrachud, J  (as  he  was then):               "With regard to the first submission it may he               pointed  out that an application  for  special               leave  under Article 136 of  the  Constitution               against  a  judgement or an  order  cannot  be               equated with the ordinary remedy of appeal, as               of right, under any provisions of law.  It  is               an  extraordinary  right conferred  under  the               constitution,  within the discretion  of  this               Court,  and  such an application  for  special               heave  does not come within the  contemplation               of  appeal  pending  before  the  Court  under               Section 13 A (a)." It  is  a basic principle of the administration  of  justice that like cases should be decided alike.  It is a very sound rule and practice otherwise on same question of law or  same set  of facts different persons approaching a Court can  get different orders.  But can the appeal of an accused. who has been  granted special leave to appeal, be dismissed  on  the ground that the Special Leave Petition filed on behalf of  a coaccused with more or less similar charges has already been rejected  by this court. althouhgh this Court  is  satisfied that  either  such accused whose appeal is  being  heard  is entitled to acquittal or ought to have been convicted for  a different  offence with a different sentence.  The  doctrine of  precedent is not applicable to an order passed  by  this Court  rejecting a Special Leave Petition.  Any  such  order cannot  be held to be stare decisis so that it is a  binding on us. If  it is held that as the Special Leave Petition  filed  on behalf  of  Suresh and Vijender having been  rejected,  this Court cannot alter the conviction or sentence passed against the three appellants. including the acquittal of any one  of them.  althogh  the Court is satisfied on the  materials  on record,  then  what  was the purpose,  while  rejecting  the Special   Leave  Petition  of  the  co-accused  Suresh   and Vijender, to grant leave to appeal so far the present  three appellants  are concerned?  At the same time it need not  be impressed that rejection of the Special Leave Petition gives a  finality to an order of the High Court, inasmuch  as  the same  accused  cannot  file  more  then  one  Special  Leave Petition. 74 But  in rare and exceptional cases this Court has  exercised power  under  Article 32 of the Constitution so  that  there should  not he miscarriage of justice and to avoid a  direct conflict and confrontation between two orders of this Court. In the case of Harbans Singh v. State of U. P., AIR 1982  SC 849,  two accused persons had been sentenced to death  by  a common judgment.  Special Leave Petition filed on behalf  of one of the accused persons was dismissed.  So far the  other accused, who had also been sentenced to death. is  concerned his  Special Leave Petition was entertained on  question  of sentence.   Ultimately  his death sentence was  commuted  to imprisonment  for  life.   The other  accused  person  whose Special Leave petition had been dismissed filed it  petition under  Article 32. His death sentence was also  commuted  by the Supreme Court. In that connection it was said:               "Since  Kashmira  Singh’s death  sentence  was

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             commuted by this Court. it would be unjust  to               confirm  the death sentence imposed  upon  the               petitioner.  That  will involve the  Court  as               well  as  the  authorities  concerned  in  the               violation  of rudimentary norms governing  the               administration of justice.  " In  the well known case of A.R. Antulay v. R.S. Nayak.   AIR 1988 SC 153 1. it was pointed Out that the Supreme Court  is not  Powerless  to  correct  its  error  affairs  Court   is satisfied  that if such power is not exercised it will  lead to  manifest  injustice because no man can  suffer  for  the mistake of the Court. Again in the case of Pyare Singh v. State of Madhya  Pradesh [1992] Supp. 3 SCC 45, this Court in exercise of power under Article   136  of  the  constitution  while   altering   the convictions  and reducing the sentences of the four  out  of six  accused persons who had filed Special  leave  petitions before  this Court. extended the same benefit and relief  to other two accused persons who had not even filed any Special Leave  petition  against  their  convictions  and  sentences because  this  court  felt  that  if  the  same  benefit  of alteration of conviction and modification in sentence is not given  to other two convicted accused persons. it will  lead to gross injustice. 75 The  mere  rejection of the Special Leave  Petition  of  co- accused  persons cannot seal the fate of the appeals of  the appellants  which have been entertained after  leave  having been  granted by this Court.  The appellants to  whom  leave has  been  granted can urge all questions within  the  frame work of Article 136 of the Constitution for consideration by this  Court  and a relief to which such  appellants  may  be entitled cannot be denied to them merely on the ground  that Special Leave Petition in respect of co-accused persons with more  or less similar charges, evidence and convictions  has already been rejected. On materials on record, the prosecution has not been able to prove and establish (hit appellants had the common object or shared  the  common  intention to cause the  murder  of  the victim.   From  the evidence of the  prosecution  itself  it appears  that  the  flour  mill  of  the  deceased  and  the residential  unit of the accused persons being  adjacent  to each  other,  suddenly  a  fight took  place  in  which  the appellant Satbir gave a blow by the back side (wooden  part) of  the Pharsa, which caused one of the two injuries on  the head  of  the deceased.  It cannot be  held  that  appellant Satbir  had an intention to cause the death of  the  victim. In  the circumstances of ’the case.  It can he said that  he had  only  knowledge  that such blow  may  cause  an  injury resulting in the death of the victim.  Accordingly he should have been convicted under Section 304, Part-11, of the Penal Code. So  far  appellant  Gulbir is concerned,  according  to  the prosecution case, he was carrying a stick and he is  alleged to  have given a stick blow to the deceased on  a  non-vital part of’ the body.  In this background, according, to us, he can  he held to have committed the offence on under  Section 325 of the Penal code.  As already pointed out according  to the  prosecution case itself, the appellant Hari Singh,  who was  aged  about 60 years at the time of the  occurrence  is said to have given a stick (lathi) blow to the informant  PW 16.  tie  is  not  alleged to have given  any  blow  to  the deceased.   Once it is held that different  accused  persons neither had any common object nor any common intention which they shared together to commit an offence under Section  302

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or alike, the appellant Hari Singh has to he held guilty for an offence only under Section 323 of the Penal Code.  In the result  the conviction of the appellants under  Section  302 read  with Section 149 of the Penal Code is set-aside.   The conviction under Sections 148 and 323 read with 149 is  also set-aside.  The appellant Satbir is convicted for an offence under 76 Section  304  Part 11 and is sentenced to  undergo  rigorous imprisonment  for  seven  years.  The  appellant  Gulbir  is convicted for an offence under Section 325 of the Penal Code and is sentenced to undergo rigorous imprisonment for  three years.  So far the appellant Hari Singh is Concerned, he  is convicted for an offence under Section 323 of the Penal Code and is sentence to the period of imprisonment already under gone.  Accordingly the appeals are allowed in part  to the extent indicated above. N. V. K.                     Appeal allowed. 77