04 November 1964
Supreme Court


Bench: SARKAR,A.K.
Case number: Special Leave Petition (Civil) 3732 of 1986






DATE OF JUDGMENT: 04/11/1964


CITATION:  1965 AIR 1037            1965 SCR  (2)   1  CITATOR INFO :  F          1991 SC 318  (17)

ACT: Murder-Common  intention-Separate trials of actual  murderer and  accomplice-Former acquitted while latter  convicted  on the basis of having common intention with former--Conviction whether justified-Indian Panel Code, 1860 (Act 45 of  1860), s. 34.

HEADNOTE: R shot at two persons and in consequence one died while  the other did not.  The appellant who himself carried a gun  was present  at the spot along with six others variously  armed. R  absconded,  and the appellant along with  the  six  other persons mentioned above was tried for offences under ss. 302 and 307 read with ss. 148 and 149 of the Indian Penal  Code. The  Sessions  Judge  convicted only  the  appellant  giving benefit  of doubt to others.  The appellant filed an  appeal before  the High Court. After his conviction but before  his appeal  was heard, R was arrested, put up for trial  on  the same charges, and acquitted.  The appellant’s appeal  before the High Court was dismissed but his conviction was  altered and  instead of ss. 302 and 307 Indian Penal Code read  with ss. 148 and 149 he was convicted for offences under ss.  302 and 307 of the Code read with s. 34.  The appellant came  to this Court in further appeal. It  was contended that in view of the acquittal of R by  the Sessions Judge, from which there had been no appeal, it  was not  open to the High Court to hold that the  appellant  was guilty of murder and attempt to murder under ss. 302 and 307 read  with  s.  34, by finding that R who  shared  a  common intention  with him shot the deceased dead and attempted  to murder another. HELD : In spite of the acquittal of a person in one case, it is  open  to the court in another case, to  proceed  on  the basis-if the evidence warrants it-that the acquitted  person was guilty of the offence of which he had been tried in  the other  case, and to find in the later case that  the  person tried  in it was guilty of an offence under s. 34 by  virtue of  having  committed the offence along with  the  acquitted person.  Each case has to be decided on the evidence led  in



it  and this irrespective of any view of the same  act  that might  have been taken on different evidence led in  another case. [4E-G] Marachalil  Pakku v. State of Madras, A.I.R. 1954 S.C.  648, Bombadhar  Pradhan  v. State of Orissa and Sunder  Singh  v. State of Punjab, A.I.R. 1962 S.C. 1211, relied upon. Pritam  Singh  v.  State of Punjab  A.I.R.  1956  S.C.  415, Sambasivam  V. Public Prosecutor, Federation of Malaya  L.R. [1950]  A.C.  458  and  Krishna Govind  Patil  v.  State  of Maharashtra, distinguished.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 55 of 1963. 2 Appeal  by special leave from the judgment and order,  dated August  27, 1962, of the Madhya Pradesh High Court  (Gwalior Bench) at Gwalior in Criminal Appeal No. 18 of 1961. B. C. Misra, for the appellant. Al.  S. K. Sastri and 1. N. Shroff, for the respondent. The Judgment of the Court was delivered by Sarkar J. The appellant, Ramhans, and six other persons were alleged  to have committed the murder of Gabde and  to  have attempted to murder Ramchandra.  The deceased and Ramchandra are  said  to have belonged to one party while  the  alleged assailants  belonged  to  another,  and  between  these  two parties there had been great enmity for some time past.   It was said that about midnight of November 18, 1959, while the deceased  and  Ramchandra  and certain  other  persons  were sleeping on a Tiwaria (terrace), the assailants entered  the place  and Ramhans shot Gabde dead with a gun and fired  two shots  at  Ramchandra  with  intent to  kill  him  but  only succeeded  in  injuring  him  and that  all  this  time  the appellant was standing there armed with a gun and the  other persons  were  also there armed variously and that  all  had entered  the place with the common intention  of  committing the offences. Ramhans had absconded and so the appellant and the other six alleged assailants were put up for trial for offences  under ss.  302  and 307 read with ss. 148 and 149  of  the  Indian Penal Code for the murder of Gabde and the attempt to murder Ramchandra.   The  learned  Sessions  Judge  convicted   the appellant  of  these offences but acquitted  the  other  six persons  tried  along with him, giving them the  benefit  of doubt.  The appellant preferred an appeal to the High  Court of Madhya Pradesh.  After the conviction of the appellant by the  learned Sessions Judge but before his appeal  could  be heard,  Ramhans had been arrested, put up for trial  on  the same charges and acquitted. Before  the High Court the appellant contended that  Ramhans having  been  acquitted  the appellant  could  not  be  held constructively  liable for the offences with the aid  of  s. 149  of the Code.  The High Court rejected  this  contention relying upon the judgments of this Court in Marachalil Pakku v.  The  State of Madras,(1) Bombadhar Pradhan v.  State  of Orissa  (2)  and Sunder Singh v. State of Punjab  (3).   The following observation appears in the judgment (1) A.I.R. 1954 S.C. 648.      (2) 11956] S.C.R. 206. (3)  A.I.R. 1962 S.C. 121 1. 3 of  the  High  Court  :  "Relying  on  Ramchandra’s   direct testimony as supported by Dwarka, Matadin and  Maharajsingh, I would hold that Gabde’s murder was committed by Ramhans by



firing  a gun at him and that Ramhans also fired  two  shots from  his  gun at Ramchandra in order to  kill  him.   Karan Singh was at this time standing armed with a gun by the side of  Ramhans..........  I  would, therefore,  hold  that  the offence  of Gabde’s murder and attempt to commit the  murder of  Ramchandra were committed by Ramhans in  furtherance  of the  common  intention  of  both  himself  and  the  present appellant Karan Singh.  The case for the prosecution had  at all  stages been that both Ramhans and Karan Singh had  gone inside  the  Tiwaria armed with guns and  that  Karan  Singh throughout  the  incident standing by the  side  of  Ramhans armed with a gun.  On these facts S. 34 I.P.C. would clearly apply  to  the  case against  the  present  appellant  Karan Singh." In this view of the matter the High Court  convicted the  appellant Karan Singh under ss. 302 and 307  both  read with S. 34 of the Code instead of the earlier sections  read with  ss.  148  and  149 as had been  done  by  the  learned Sessions  Judge.   The appellant has come to this  Court  in further appeal. The  only question argued in this appeal is whether in  view of  the acquittal of Ramhans by the learned  Sessions  Judge from which there had been no appeal, it was open to the High Court to hold that the appellant was guilty of murder  under S.  302  read  with S. 34 by finding on  the  evidence  that Ramhans  who  shared a common intention with him,  shot  the deceased  dead and attempted to murder Ramchandra.   In  the High  Court  reliance  had  been placed  on  behalf  of  the appellant  on the judgment of this Court in Pritam Singh  v. State of Punjab(1).  That case referred with approval to the judgment  of the Judicial Committee in Sambasivam v.  Public Prosecutor,  Federation  of Malay(2) where it  was  observed that  "the  effect of a verdict of  acquittal......  is  not completely stated by saying that the person acquitted cannot be  tried  again for the same offence.  To that it  must  be added  that  the verdict is binding and  conclusive  in  all subsequent   proceedings   between  the   parties   to   the adjudication." As the High Court pointed out, that  observa- tion  has  no application to the present case  as  here  the acquittal of Ramhans was not in any proceeding to which  the appellant  was a party.  Clearly, the decision in each  case has  to  turn  on the evidence led  in  it;  Ramhans’s  case depended  on  the evidence led there while  the  appellant’s case  had to be decided only on the evidence led in it.  The evidence led in Ramhans’s case and the decision there (1) A.I.R. 1956 S.C. 415.    (2) L.R. [1952] A.C. 458,479. 4 arrived  at on that evidence would be wholly  irrelevant  in considering the merits of the appellant’s case.  We may  add here  that Mr. Misra appearing for the appellant did not  in this Court rely on Pritam Singh’s(1) case. Mr.  Misra  contended  that the decision of  this  Court  in Krishna Govind Patil v. State of Maharashtra(1) showed  that the  High  Court  was  wrong in ignoring  the  fact  of  the acquittal  of  Ramhans.   We  are  unable  to  accept   that contention.   The point there considered really was  whether when four persons had been charged with the commission of an offence  of murder read with s. 34 and the trial  Court  had acquitted  three  of  them,  it was  legal  to  convict  the remaining accused of the offence of murder read with s.  34. The High Court had held that could be done.  This Court  set aside  the judgment of the High Court mainly on  the  ground that  such a decision would result in conflicting  findings. It  was  observed,  "while it  (the  High  Court)  acquitted accused 1, 3 and 4 under s. 302 read with section 34 of  the Indian Penal Code, it convicted accused 2 under S. 302  read



with  s.  34,  of the said Code, for  having  committed  the offence  jointly  with  the acquitted persons.   This  is  a legally  impossible position." That case no doubt  discussed various  situations  where it is possible  after  acquitting certain  persons  to hold that the conviction  of  other  or others  was  justified under s. 34 on the  ground  that  the evidence  showed that there were other unknown  persons  who were  associated with those convicted though the charge  did not mention them.  With this aspect of the matter we are not concerned  in this case and neither was the case of  Krishna Govind Patil(1). We  are, therefore, of opinion that the judgment in  Krishna Govind Patils(1) case does not assist the appellant at  all. On  the  other  hand we think  that  the  judgments  earlier referred to on which the High Court relied, clearly  justify the  view that in spite of the acquittal of a person in  one case  it is open to the Court in another case to proceed  on the  basis--of course if the evidence warrants  it-that  the acquitted  person was guilty of the offence of which he  had been  tried in the other case and to find in the later  case that  the person tried in it was guilty of an offence  under S.  34 by virtue of having committed the offence along  with the  acquitted  person.  There is nothing  in  principle  to prevent  this being done.  The principle of  Sambasivam’s(2) case  has no application here because the two cases  we  are concerned with are against two different persons though  for the commission of the same offence. (1) [1964] 1 S. C. R. 678.   (2) L. R. 11952] A.C. 458,479. 5 Furthermore,  as we have already said, each case has  to  be decided  on the evidence led in it and this irrespective  of any  view  of  the same act that might have  been  taken  on different evidence led in another case. In the result the appeal fails and is dismissed.  Appeal dismissed. 6