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PETITIONER: KHARKAN AND OTHERS

       Vs.

RESPONDENT: THE STATE OF U.P.

DATE OF JUDGMENT: 29/08/1963

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. DAS, S.K. GUPTA, K.C. DAS

CITATION:  1965 AIR   83            1964 SCR  (4) 673  CITATOR INFO :  RF         1965 SC  87  (10)

ACT: Criminal    Procedure-Two  incidents-Trial   separate--Prior acquittal in one-If operates as bar to conviction in another caseCode  of Criminal Procedure, 1898 (Act V of  1898),  ss. 403, 236, 237.

HEADNOTE: The eight appellants variously armed attacked one ’T’ and as a  result  of the assault ’T’ died.  These  appellants  then proceeded  to loot the house of ’T’ and on the way met  four others  who joined them.  They then came across one ’P’  and assaulted  him.   There  was a small gap of  time  and  ’the places  of assault were different.  The magistrate framed  a single  charge  but  the Session Judge  framed  two  charges namely  one connected with the attack on ’T’ and  the  other connected  with  the attack on ’P’.  He also  separated  the trials on the two charges.  The Sessions judge convicted the appellants  in  both cases.  The appeal in the  second  case i.e. the case relating to assault on ’P’ was heard first  by the  High  Court and the appellants were  acquitted  of  the charges of being members of an unlawful assembly.  Later the appeal  connected with the assault on ’T’ was heard  by  the High  Court  and  in  that  appeal  their  convictions   and sentences were confirmed.  The present appeal arises out  of the convictions and sentences passed by the High Court.  The appellants contended that the prior acquittal in the  second case  operated  as a bar to the conviction  in  the  present case.   The  appellants relied on a decision  of  the  Privy Council  namely Sarnbasivam v. Public Prosecutor  Federation of Malaya and  of  this  Court in Pritam Singh v.  State  of Punjab. Held:     (i)  There  was  nothing  in  common  between  the present appeal and  the  aforesaid two cases relied upon  by the appellants.In this case the assault on ’T’ was over when the  unlawful assembly formed its new common  object  namely the assault on ’P’. (ii) A  plea  of  autrefois  acquit  which  is   statutorily recognised  in  India under s. 403 of the Code  of  Criminal Procedure  arose when a person is tried again for  the  same

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offence or on the same facts for any other offence for which a different charge from the one made against him might  have been  made  under  s. 236 or for which he  might  have  been convicted  under s. 237.  The prior acquittal in  the  other case  did  not  operate as a bar to the  conviction  in  the present  case  as  the charge in the other  case  was  quite different from and independent of the charge in the  present case, and ss. 236 and 237 of Code of Criminal Procedure were not applicable to the present facts because the two offences were distinct. Sambasivam  v.  Public Prosecutor Federation  of  Malaya,  [ 1950] A.C. 458, Pritam Singh v. State of Punjab, A.I.R. 1956 S.C.  415,  Gurcharan  Singh v. State of  Punjab,  [1963]  3 S.C.R. 585 and 674 Mohinder Singh v.  State of Punjab, Cr.  A. No. 140 of  1961 decided on 31-7-63, explained. (iii)     This   court,   in   the   absence   of    special circumstances,  does not review for the third time  evidence which  has  been accepted in the High Court  and  the  trial court.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 95  of 1961. Appeal  by special leave from the judgment and  order  dated February  15, 1961, of the Allahabad High Court in  Criminal Appeal No. 1597 of 1960. D.   S. Tewatia and K. B. Mehta, for the appellants. O.   P. Rana and C. P. Lal, for the respondents. August 29, 1963.  The judgment of the Court was delivered by HIDAYATULLAH  J.-This is an appeal by special leave  against the  judgment  of the High Court of  Allahabad  in  Criminal Appeal  No. 1597 of 1960 decided on February 15, 1961.   The appellants are eight in number and they have been  convicted under  S. 325 read with S. 149 of the Indian Penal Code  and sentenced  to three years rigorous imprisonment.  They  have also  been convicted variously under ss. 147 &  148,  Indian Penal  Code and sentenced to smaller terms  of  imprisonment which  need not be mentioned as those sentences are made  to run  concurrently  with  the  above  sentence.   They   were originally  charged  under S. 302 read with S.  149,  Indian Penal  Code for the murder of one Tikam on January 24,  1960 at  about  noon in village Nandgaon Police  Station  Barsana District Mathura.  The Session Judge, Mathura, did not think that a case of murder was made out and convicted them of the lesser offence.  Their appeal to the High Court was  dismis- sed and the conviction and sentences were maintained. There was yet another trial at which these eight persons and four  others were tried under S. 307/149, Indian Penal  Code for causing hurt to one Puran with such intention and  under such  circumstances that if by that act they had caused  his death  they would have been guilty of murder and also  under ss.  147  & 148 of the Penal Code for being  members  of  an unlawful assembly, the common object of which was an attempt on  Puran’s life.  The learned Sessions judge, Mathura  held in  the  second case that the injuries  sustained  by  Puran warranted an 675 offence  under s. 323, Indian Penal Code.  The  accused  and Puran  compounded  that  offence and all  the  accused  were acquitted.  The Sessions judge, however, convicted 11 out of 12  accused  under  ss. 147 & 148,  Indian  Penal  Code  and

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awarded  different  sentences,  according  to  the   weapons possessed by them.  One Koka was acquitted because his  plea that  he was blind from birth was accepted.  The 11  accused in  the  second  case appealed to the High  Court  and  were acquitted  of  the charge of being members  of  an  unlawful assembly.  That Judgment of the High Court was delivered  on January  31,  1961,  in Criminal Appeal No.  1598  of  1960, fifteen  days before the confirmation of the conviction  and sentences of the eight appellants in this appeal.  The facts of the case may now be given. There was enmity between Tikam (deceased) and the appellants and  on  January 24, 1960, just about noon  time  Tikam  was sitting  at  the shop of a blacksmith in  village  Nandgaon. Dulli  and  Nathi  who were examined as P. Ws. 2  &  3  were sitting  near  him.   The appellants  who  were  armed  with Ballams,  a  Pharsa and Lathis arrived on the  spot  and  on seeing  Tikam  started to assault him.  Tikam  was  severely injured  and fell in a ditch adjacent to the road  but  even after  he  fell  in  it the assault  was  continued  by  the appellants.   He died the same day about five  hours  later. After assaulting Tikam, these appellants decided to  ransack his house and started towards it.  On the way they were  met by  the other four accused and this brought their number  to twelve.   While they were going to the house of  Tikam  they saw Puran and decided to beat him.  Puran was assaulted  and the second case arose out of the assault on him. The  learned magistrate who committed the accused  to  stand their  trial  before the Court of Sessions framed  a  common charge  in  respect of the two incidents  but  the  Sessions judge  amended  the charge and divided it into  two  charges namely one connected with the attack on Tikam and the  other connected  with the attack on Puran., He also separated  the two  trials  on  the two charges.   As  stated  already  lie convicted  the eight appellants in respect of their  assault on  Tikam  and  the same appellants  with  three  others  in respect of their assault on Puran. 676 The  appeal  in  the second case was  heard  first  and  was allowed  by  the High Court and the 11  appellants  in  that appeal  including  the eight before us were  ordered  to  be acquitted. It  was contended before us by Mr. Tewatia that Mr.  Justice Sharma who delivered the judgment impugned before us did not allow  the appellants a chance to reply to the arguments  on behalf  of  the State and thus denied them a  fair  hearing. This  fact was mentioned in the petition for certificate  in the  High  Court and has been repeated in the  petition  for special leave.  Mr. Justice Sharma had proceeded to  deliver judgment as soon as the arguments were over and the judgment was delivered by him on two consecutive days in the presence of the appellants and their counsel.  If any such right  had been  denied to the appellants they should have brought  the matter immediately to the notice of the learned Judge and he would  have  rectified it.  It appears that  the  appellants were hoping for an acquittal in view of the prior  acquittal by the learned judge in the companion case and realised  too late  that  their appeal was not accepted.  It is  for  this reason  that  they do not appear to have raised  this  issue before the learned Judge when they asked him to certify  the appeal  and  his  Order  does not  show  that  they  made  a grievance  that  the hearing was not fair.  In  our  opinion this  point  cannot  be considered because  though.  it  was mentioned in the petition for certificate it was  apparently not pressed before Mr. Justice Sharma. The  next  contention of the appellants is  that  the  prior

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acquittal  in  the  second case operates as  a  bar  to  the conviction  in the present case and the High Court ought  to have  given  the  appellants the benefit of  the  prior  ac- quittal.   Reliance in this connection is placed upon a  de- cision  of  the Privy Council in a case  from  Malaya  State reported  in Sambasivam v. Public  Prosecutor/Federation  of Malaya(1)  and particularly the following passage  from  the judgment of Lord Mac Dermott:               "The   effect  of  a  verdict   of   acquittal               pronounced  by a competent court on  a  lawful               charge  and  after  a  lawful  trial  is   not               completely  stated by saying that  the  person               acquitted  cannot be tried again for the  same               offence.               [1950] A.C., 458 at p. 479.               677               To  that is must be added that the verdict  is               binding  and  conclusive  in  all   subsequent               proceedings   between  the  parties   to   the               adjudication.   The maximum "Res judicata  pro               veritate  accipitur" is no less applicable  to               criminal than to civil proceedings.  Here, the               appellant  having been acquitted at the  first               trial on   the charge of having ammunition in               his possession, the prosecution was bound to               accept the correctness    of that verdict  and               wasprecluded   from   taking   anystep   to               challenge it at the second trial.  And the ap-               pellant  was no less entitled to rely  on  his               acquittal in so far as it might be relevant in               his  defence.  That it was not  conclusive  of               his innocence on the firearm charge is  plain,               but it undoubtedly reduced in some degree  the               weight  of  the case against him, for  at  the               first trial the facts proved in support of one               charge  were  clearly relevant  to  the  other               having  regard to the circumstances  in  which               the ammunition and revolver were found and the               fact that they fitted each other." The  above passage was cited with approval by this Court  in Pritam  Singh  v. State of Punjab(1).  The two  cited  cases were considered and distinguished by this Court in  Mohinder Singh  v.  State of Punjab(2) and Pritam  Singh’s  case  was again  distinguished in Gurcharen Singh & anr. v.  State  of Punjab(1).   As  pointed out in Mohinder Singh v.  State  of Punjab(2),  the  case  of  the  Privy  Council  involved   a confession by an accused in which he admited possession of a firearm  and some ammunition which were both offences  under the  relative law of Malaya State.  He was convicted on  the basis  of  that statement on two counts but  on  appeal  was acquitted in respect of the count relating to the possession of  ammunition and a fresh trial was ordered in  respect  of the count relating to the possession of the firearm.  In the second trial the confession was again relied upon and he was convicted.   The  Privy  Council set  aside  the  conviction because  the confession was incapable of being divided  into two parts so as to make separate confessions about the (1)  A.I.R. 1956 S.C. 415. . (2)  Cr.    A.   No.  140  of  1961,  decided   on   31-7-63 (Unreported). (3)  [1963] 3 S.C.R. 585. 678 possession  of  firearm  and about  the  possession  of  am- munition.   Their Lordships held that the  confession  which was  indivisible  could not be used at all, in view  of  the

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acquittal  recorded earlier on the other count.   In  Pritam Singh’s case(1) the accused made a statement leading to  the recovery of a firearm with which he was alleged to have shot one of the victims.  He was prosecuted for possession of the firearm and was acquitted but the evidence of the possession of the firearm was used in the murder charge.  This was held to  be  not permissible.  As explained in  Mohinder  Singh’s case(2),  the  acquittal  in respect of  the  possession  of firearm  affected the admissibility of the same evidence  in connection  with the murder case, because the firearm  could not  at the same time be possessed as well as not  possessed by  the accussed.  The acquittal under the Arms Act,,  being proper,  affected the evidence of possession in  the  murder case.   In   Mohinder  Singh’s  case(2)  as   well   as   in Gurcharan’s(3)  case  Pritam’s(1)  case  was   distinguished because in those cases, the acquittal under the Arms Act was later than the conviction on the substantive charge. There  is nothing in common between the present  appeal  and the  two cases relied upon by the appellants.  In this  case there  is no doubt a prior acquittal but on a  charge  which was  quite different from and independent of the  charge  in the  present case.  The assault on Tikam was over  when  the unlawful  assembly formed its now common object  namely  the assault  on Puran.  The acquittal proceeded  mainly  because Puran compounded the offence under s. 323 and the High Court did  not feel impressed by the evidence about the  remaining charges, The charges on which that acquittal took place  had nothing  whatever to do with the charges on which  there  is conviction  in  the  present appeal.  A  plea  of  autrefois acquit which is statutorily recognised in India under s. 403 of  the Code of Criminal Procedure arises when a  person  is tried  again for the same offence or on the same  facts  for any other offence for which a different charge from the  one made against him might have been made un- (1)  A.I.R. 1956 S. C. 415. (2)  Cr.    A.   No.  140  of  1961,  decided   on   31-7-63 (unreported). (3)  [1963] 3 S.C.R. 585. 679 der  s. 236 or for which he might have been convicted  under s. 237. Section  236 provides for a situation where it  is  doubtful what  offence  has  been committed.  When a  single  act  or series of acts is of such a nature that it is doubtful which of  several  offences  the facts which can  be  proved  will constitute,  that  section permits that the accused  may  be charged  with having committed all or any of  such  offences and  any number of such charges may be tried at once  or  he may be charged in the alternative with having committed some one  of  such offences.  Section 237 enables  the  Court  to convict an accused charged with one offence for a  different offence  where the facts show that a different  offence  has been committed. Neither  of  these provisions is applicable to  the  present facts  because  the two offences were  distinct  and  spaced slightly by time and place.  The trials were separate as the two incidents were viewed as distinct transactions.  Even if the two incidents could be viewed as connected so as to form parts  of  one transaction it is obvious that  the  offences were  distinct and required different charges.  The  assault on Tikam in fulfilment of the common object of the  unlawful assembly  was over when the unlawful assembly  proceeded  to the  house  of Tikam to loot it.  The new common  object  to beat  Puran was formed at a time when the common  object  in respect  of Tikam had been fully worked out and even if  the

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two  incidents  could be taken to be connected by  unity  of time and place (which they were not), the offences were dis- tinct  and required separate charges.  The learned  Sessions judge  was right in breaking up the single charge framed  by the  magistrate and ordering separate trials.  In this  view the  prior acquittal cannot create a bar in respect  of  the conviction herein reached. It  was contended by Mr. Tewatia that the  earlier  judgment involved  almost the same evidence and the reasoning of  the learned judge in Puran’s case destroys the prosecution  case in  the  present appeal.  He attempted to  use  the  earlier judgment to establish this point.  In our opinion he  cannot be  allowed  to  rely  upon the  reasoning  in  the  earlier judgment  proceeding  as  it did  upon  evidence  which  was separately recorded and separately 680 considered.   The  eye witnesses in this case  are  five  in number,  while  in the other case there were only  two,  but that apart, the earlier judgment can only be relevant if  it fulfils the conditions laid down by the Indian Evidence  Act in  ss. 40-43.  The earlier judgment is no doubt  admissible to  show  the  parties  and  the  decision  but  it  is  not admissible for the purpose of relying upon the  appreciation of evidence.  Since the bar under s. 403 Criminal  Procedure Code  did not operate, the earlier judgment is not  relevant for the interpretation of evidence in the present case. Mr. Tewatia attempted to argue on the facts of this case but we  did not permit him to do so because this Court,  in  the absence  of special circumstances, does not review  for  the third  time, evidence, which has been accepted in  the  High Court  and the Court below.  No such circumstance  has  been pointed  out  to  us  to make us  depart  from  the  settled practice.  The appeal therefore fails and is dismissed. Appeal dismissed.