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PETITIONER: NIHAL SINGH AND ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 10/05/1963

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1965 AIR   26            1964 SCR  (4)   5  CITATOR INFO :  RF         1972 SC 622  (32)

ACT: Criminal   Trial-Acquittal   order   set   aside   by   High Court--Appeal  preferred  to  this  Court-Procedure  to   be followed by this Court in hearing the appeal-Constitution of India, Art. 136.

HEADNOTE: The  appellants formed themselves into an unlawful  assembly and in pursuance of their common object caused the death  of two  persons.  They were tried under ss. 148 and 302/149  of Indian  Penal Code.  The trial Court acquitted them  of  all the charges.  On appeal, the High Court, on a review of  the entire  evidence,  set  aside the  order  of  acquittal  and sentenced each of them to undergo rigorous imprisonment  for life and one year respectively under the aforesaid  charges. Hence this appeal. Held, (per Subba Rao and Mudholkar JJ.) This Court has  full discretion to hear an appeal under Art. 136 of the Constitu- tion on facts and law.  But this wide jurisdiction has to be regulated by the practice of this Court.  There are two ways of approach to the hearing of such an appeal by this Court : one is to go through the entire evidence and then come to  a conclusion   whether  the  High  Court  has  infringed   the principles  laid down in Sanwat Singh’s case or whether  the appeal   is   an  exceptional  one  which  calls   for   the interference of this Court in the interest of justice.   The other and more convenient method is to allow the counsel  to state  the  case  broadly  and,  after  going  through   the judgments  of  the  lower courts, to come  to  a  conclusion whether  the  appeal  falls under one or other  of  the  two categories  mentioned  above,  and then,  if  the  court  is satisfied  that  it  is  a fit case  to  review  the  entire evidence, to do so. The  second method is a more convenient one as it  also  pre vents the unnecessary waste of time involved in adopting the alter  native  procedure  of treating  practically  such  an appeal  as a regulaappeal.  Obviously this Court cannot  lay down  an inflexible rule of practice in this regard  and  it must be left to the division benches to follow the procedure

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that appears suitable to them. 6 Sanwat  Singh  v. State of Rajasthan, [1961] 3  S.C.R.  120, followed. State  of  Bombay  v. Rusy Mistry,  A.I.R.  1960  S.C.  391, followed. (2)  The  High Court had borne in mind the  principles  laid down by this Court in Sanwat Singh’s case and had considered the entire evidence carefully and arrived at the finding  of fact as it did.  It is not an exceptional case in which  the entire evidence can be reviewed. (3)  On the facts found no case of private defence could  be made out.  This plea was not raised either before the  trial court or before High Court. Held (per Raghubar Dayal J.) (1) Dividing the hearing of  an appeal  under Art. 136 into two parts, hearing on a  broader view and later, if necessary, on facts, does not go to  make a  hearing as perfect as it would be desirable for a  proper adjudication of the appeal. (2)  It  is not desirable to lay down any  limitation  about the  scope of the jurisdiction of this Court and the  limits of  the exercise of its discretion in hearing an  appeal  of this  nature  as this Court has full discretion to  hear  an appeal on both facts and law.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 53  of 1962. Appeal  by special leave from the judgment and  order  dated January 9, 1961, of the Punjab High Court in Criminal Appeal No. 1018 of 1960. A.  Ranganadham Chetty and K. L. Arora, for the appellants. B.   K. Khanna and P. D. Menon, for the respondent.  May 10, 1963.The  judgment  of  Subba Rao  and  Mudholkar  JJ.,  was delivered  by  Subba Rao J. Dayal J.  delivered  a  separate Opinion. SUBBA RAO J.-The appeal by special leave is directed against the  judgment of the High Court of judicature for Punjab  at Chandigarh  setting  aside  that of  the  Second  Additional Sessions  judge, Ferozepore, acquitting the 5 appellants  of the charges under S. 148 and ss. 302/149 of the Indian Penal Code  and  convicting  them  under  the  said  sections  and sentencing  each of them to rigorous imprisonment  for  life and one year respectively. The prosecution case may be briefly stated : On December 23, 1959,  the 5 appellants formed themselves into  an  unlawful assembly and in pursuance of their common object caused  the death  of  Gurdit  Singh and his son Pal  Singh.   At  about sunset time on that date, the                                 7 five  appellants were present in the haveli of Banta  Singh, the father of Nihal Singh, Appellant 1. When Tara Singh  was proceeding  towards his house, the 5 appellants, armed  with deadly  weapons, came out of the haveli and chased  him  for the  purpose of assaulting him.  At that time Ranjit  Singh, who was watering his cattle at a nearby well, asked them not to beat Tara Singh.  Tara Singh also raised an alarm when he was  being pursued by the appellants.  Gurdit Singh,  father of  Ranjit Singh, Gurdit Singh’s another son Pal  Singh  and Pal Singh’s son Balbir Singh also came out of their house on hearing  the  alarm  raised by Tara Singh.   Pal  Singh  was carrying  a  take away in his hand.  Gurdit  Singh  and  Pal Singh  asked the assailants not to beat Tara  Singh.   Dalip

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Singh, Appellant 3, caught hold of Pal Singh from behind and Nihal  Singh, Appellant 1, aimed a dang blow at Pal  Singh’s head.   Pal  Singh used his takwa  in  self-defence  against Darshan   Singh,  Appellant  4,  whereupon  Harbans   Singh, Appellant 5, gave a blow with his takwa to Pal Singh and the latter  fell  down.  Thereafter, Darshan  Singh  and  Pritam Singh,  Appellant  2 belaboured Pal Singh with  their  takwa when  the latter was lying on the ground.  The takwa in  the hand of Pal Singh fell down from his hand and thereupon  his father,  Gurdit Singh, seized the same and attempted to  use it against the appellants; Pritam Singh gave a dang blow  to Gurdit  Singh on his head.  Harbans Singh and Darshan  Singh also  did likewise.  Gurdit Singh died on the spot  and  Pal Singh,  a  little  time  thereafter.   The  appellants  were committed to the Sessions to meet the aforesaid charges. The  appellants  pleaded  "not guilty" to  the  charges  and stated that they were all implicated because of enmity.  The learned Additional Sessions judge, on a consideration of the evidence,  came to the conclusion that the  prosecution  had failed  to  prove  their case beyond  all  manner  of  doubt against  any of the accused and, on that finding,  acquitted all of them.  On appeal, the High Court, on a review of  the entire  evidence, came to a different conclusion :  it  held that  the learned Additional Sessions judge  was  completely wrong in discrediting the prosecution witnesses and, on that find IA-2 S C India/64 8 ing.  It  convicted the appellants :.and sentenced  them  as aforesaid.  Hence the appeal. This  Court  in Sanwat Singh v. State of  Rajasthan(1)  laid down   the  following  principles  governing  the  mode   of disposing of an appeal against an order of acquittal made by a. subordinate Court               "The foregoing discussion yields the following               results  : (1). an appellate Court  has.  full               powers  to review the evidence upon which  the               order  of  acquittal  is  founded  ;  (2)  the               principles,   laid  down  in   sheo   Swarup’s               case(1)afford a correct guide for the  appeals               late  Court’s approach to a case in  disposing               of  such an appeal ;              and (3)  the               different phraseology used in the judgments of               this  Court,  such  as,  (1)  substantial  and               compelling reasons", (ii) "good and sufficient               cogent  reasons", and’ (ii)  "strong  reasons"               are  not  intended to  curtail  the  undoubted               power  of  an  appellate Court  in  an  appeal               against.  acquittal  ’to  review  the   entire               evidence and to ’Come to its own conclusion  ;               but  in doing so it should not  only  consider               every  matter  on record having a  bearing  on               the,  questions of fact and the reasons  given               by the Court below in support of its order  of               acquittal  in its arriving at a conclusion  on               those  facts,  but should also  express  those               reasons in its judgment which lead it to  hold               that the acquittal was not justified." But  the more difficult question is to define the  scope  of the  jurisdiction  of  this Court and the limits  I  of  the exercise  of its discretion in an appeal under Art.  136  of the  Constitution  against the judgment of  the  High  Court convicting  an  I accused after setting aside the  order  of acquittal  made by a subordinate Court.  Article 136 of  the Constitution  is  couched  in the  widest  phraseology  This

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Court’s jurisdiction is limited only by its discretion.   It can,  therefore, in its discretion, entertain an appeal  and exercise all the powers of an appellate Court in respect  of judgments,  decrees  determinations,  sentences  or   orders mentioned therein’ It means that,this Court has  undoubtedly jurisdiction to interfere even with (1) [1961] 3 S.C.R. 120,  129. (2) [1931] L.R. 61 I.A.   398. 9 findings  of fact arrived at by the High Court in an  appeal setting  aside those of a subordinate Court  acquitting  the accused.  But this wide jurisdiction has to be regulated  by the  practice  of this Court.  The fact that  the  appellate Court  in setting aside the order of acquittal has not  fol- lowed  the  principles  laid down by this  Court  in  Sanwat Singh’s  case(1)  may certainly be a ground for  this  Court interfering with the judgment of the High Court.  But if the High  Court, having followed the aforesaid  principles,  has considered the evidence and given findings of fact  thereon, we think the same practice obtaining in this Court in regard to  findings  of  fact  in appeals under  Art.  136  of  the Constitution  may  conveniently be adopted.  This  Court  in State  of  Bombay  v.  Rusy Mistry  (2)    has  recorded the practice obtaining in this Court in regard to the regulation of  the exercise of its jurisdiction under Art. 136  of  the Constitution in criminal appeals thus at p. 395 :               Article  136  of  the  Constitution  does  not               confer a right of appeal on any party from the               decision  of  a  Court  ;  but  it  confers  a               discretionary  power on the Supreme  Court  to               interfere in suitable cases.  It is:  implicit               in  the discretionary power that it cannot  be               exhaustively defined.  It cannot obviously  be               so  construed as to confer a right on a  party               where he has none under the law.  The practice               of the Privy Council and that followed by  the               Federal Court and the Supreme Court is not  to               interfere  on  questions  of  fact  except  in               exceptional  cases, when the finding  is  such               that  "it shocks the conscience of the  Court"               or "by disregard to the forms of legal process               or some violation of the principles of natural               justice  or  otherwise substantial  and  grave               injustice has been done. The same practice may also govern the exercise of discretion of  this Court in disposing of an appeal against a  judgment of  an appellate Court setting aside an order  of  acquittal made  by  a subordinate Court.  Shortly  stated,  ordinarily this  Court addresses itself to two questions when  such  an appeal comes before it for disposal, namely,, (1) [1961] 3 S.C.R. 120, 129. (2) A.I.R. 1960 S.C. 391. 2-2.  S C. India/64. 10 (i)did  the appellate Court follow the principles laid  down by  this Court in Sanwat Singh’s case (1)   in  appreciating the  evidence  ;  and (ii) if it did, is  it  one  of  those exceptional  cases which calls for the interference of  this Court.   There are two ways of approach to such an appeal  : one is to go through the entire evidence as this Court  does in  a regular appeal and then come to a  conclusion  whether the  High  Court has infringed the principles laid  down  in Sanwat Singh’s case(1) or to ascertain whether the appeal is an exceptional one which calls for the interference of  this Court  in  the  interest of justice.   The  other  and  more

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convenient method is to allow the counsel to state the  case broadly and, after going through the judgments of the  lower Courts,  to  come to a conclusion whether the  appeal  falls under one or other of the two categories mentioned above and then,  if  the Court is satisfied that it is a fit  case  to review the entire evidence, to do so.  Obviously this  Court cannot  lay  down  an inflexible rule of  practice  in  this regard  and it must be left to the division Benches  dealing with  such  appeals  to follow the  procedure  that  appears suitable to them.  But it may not be out of place to observe that in our view the second method is a more appropriate  or at any rate a more convenient one, for while it enables this Court to do justice in an appropriate case, it also prevents the  unnecessary  waste  of time involved  in  adopting  the alternative procedure of treating practically such an appeal as a regular appeal. Let  us now look at the contentions of the parties from  the said  perspective.  The prosecution story was deposed to  by three -eye-witnesses, Ranjit Singh (P.W. 2), Saudagar  Singh (P.W.  3)  and Balbir Singh (P.W. 4) and by  Balwant  Singh, Sarpanch (P.W. 7), who is -alleged to have gone to the  spot immediately  after  the occurrence.  This oral  evidence  is also sought to be corroborated by the production of  weapons by  the  accused persons.  The learned  Additional  Sessions judge discarded the evidence mainly on the following grounds : (1) The distance between the havli of Banta Singh and  the place of (1) [1961]     3 S.C.R. 120, 129. 11 occurrence  is  17  karams i. e., about 85  feet,  and  that between the place of occurrence and the gate of the house of Pal Singh is 22 karams, i.e., about 110 feet, and  therefore it  is not possible that the impact between  the  assailants and the deceased persons could have taken place at the place of clash as described by the prosecution witnesses. (2)  The time  when the murders were committed was about 9  p.m.  and not  sunset  time as has been described by  the  prosecution witnesses,  for (a) the medical evidence showed  that  there was  semidigested  food of about 2 lbs. in  the  stomach  of Gurgit  Singh  and also 12 ounces of urine in  his  bladder, which indicated that he should have been done to death  when asleep  after taking meals ; (b) as P.W. 1 the  lady  doctor has  stated  that the likely duration between  the  injuries inflicted  on the two deceased persons and their  death  was about  4  or  5 hours ; this  circumstance  contradicts  the evidence that they succumbed to the injuries soon after they were  injured  ;  (c) the distance between  the  village  of occurrence  and the police station Mallan Wala is  about  61 miles  and therefore P.W. 2 who gave the  first  information report should have reached the police station at the  latest at  about  9 p.m., but as a matter of fact  the  report  was lodged  at  about 12.45 a.m. on December 24, 1959.  (3)  (a) While  P.W. 2 stated that the deceased Gurdit Singh  gave  a takwa  blow  on  the  head  of  Nihal  Singh,  the  doctor’s examination  did not disclose that there was any  injury  on the  head  of Nihal Singh, but there was  only  an  abration "’XI"  on  the back of -his left thumb ; (b)  while  P.W.  3 stated  that  deceased Gurdit Singh had used  takwa  against Dalip  Singh, the doctor was not in a position to state  the nature of the weapon with which the injury found on him  was inflicted.  (4) Dalip Singh not having been found  with  any weapon, his name should have been falsely introduced by  the prosecution. (5) P.W. 7 stated in the cross-examination that he could not say that the blood found in the two places near the  chowk  was a masha or more and that  it  negatived  the

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story  of  the  murder  of  two  persons  at  the  place  of occurrence.   And  (6)  there  are  discrepancies  in  minor particulars between the evidence of different witnesses. 12 The  High  Court was satisfied that the  learned  Additional Sessions judge magnified the importance of minor aspects  of the  evidence and minimised or ignored its  basic  features. Having due regard to the principles laid down by this  Court in  Sanvat  Singh’s case(1), the High Court  considered  the evidence  over again in detail and came the conclusion  that the  prosecution had brought home the guilt to the  accused. On  that  view, the High Court, as we have  already  stated, convicted the accused and sentenced them. Mr. A. Ranganadham Chetty, for the appellants contends  that the learned Additional Sessions judge had taken a reasonable view  of  the  evidence and the High Court  wrongly  took  a different   view   by   not   appreciating   the   important circumstances  which  weighed with the  Additional  Sessions Judge  and  that, on the evidence, a cleir case  of  private defence has been made out. The important around that appealed to the learned Additional Sessions judge was that, having regard to the distances, the deceased could not have been murdered at the place where  it is alleged by the witnesses that they were so murdered.   If we  may  say  so, this argument on the  basis  of  time  and distance   and   the  movements  of  witnesses   is   highly hypothetical  and artificial, for the simple reason that  it is impossible to expect any witness, much less an illiterate one,  to describe the said particulars in such a  scientific detail  as  to stand the test of calculation.  But  that  is what  the learned Additional Sessions Judge did and  it  was rightly discarded by the High Court. The  next  circumstance strongly relied upon is  the  insect bites found on the dead body of Pal Singh.  Dr. Balbir Kaur, the  lady doctor, in her postmortem examination of the  dead body  found  that "both nostrils, lower lips  and  fore-head bore  the insect bite".  Udham Singh the Police Officer,  in his  injury statement, described the said injuries  as  "the bite marks of some animal like a rat on the nose, the  lower lip,  the  right cheek and the lid of left eye".   The  lady doctor’s  description may be accepted as more accurate.   It is, there (1) [1961] 3 S.C.R. 120, 129, 13 fore  clear that there was some insect bite on the  face  of the  deceased Pal Singh.  The contention is that no  rat  or insect could have bitten a dead body in the room in which it was  placed when the light was burning, when it was  covered and  when  so  many people were present by  its  side,  and, therefore,  the said bite must have been caused by some  rat or rats when the deceased was sleeping at about 9 p.m.  near a  sugar-cane  crusher installed in the field.  It  is  true that  there  is some evidence that  sugar-cane  crusher  was purchased,  though  it  was not installed and it  was  in  a vacant  space measuring about 5 to 6 marlas at the  back  of Ranjit  Singh’s  house.   But  from  this  it  would  be  an unreasonable inference that the witnesses were not  speaking the  truth.  We do not see any improbability in some  insect or  rat getting under the cloth covering the dead  body  and biting it. Another circumstance which has been magnified by the learned Additional  Sessions Judge is the discovery at the  time  of postmortem of not less than 2 lbs. of semi-degested food  in the  stomach  and 12 ounces of urine in the bladder  of  the deceased  Gurdit Singh.  It is said that  this  circumstance

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demonstrates that the said deceased must have taken his food and  must  be sleeping when he was murdered, for if  he  was murdered  at 5.30 p.m. as the witnesses deposed there  would not have been such semi-digested food in the stomach of  the deceased  or such a large quantity of urine in his  bladder. The  High  Court  pointed out that  the  said  circumstances cannot  afford a reliable basis of ascertaining the time  of death,  particularly when there is nothing on the record  to show  that the deceased had not taken any food a couple.  of hours before he was attacked.  Apart from the fact that  the time  required  to  digest food varies  depending  upon  the nature  of  the food taken, the digestive  capacity  of  the individual concerned and his health at a particular time, it is also not possible to rely upon such evidence unless there is  some definite evidence that the deceased had  not  taken any  substantial food within a few hours before  his  death. Without  such  definite  data, a Court cannot  come  to  any conclusion on the general habit of villagers taking lunch at 1 p.m. and dinner at 7 p.m. The capacity to retain urine for longer time than usual depends upon 14 individual  habits.  That apart this aspect of the case  was not  pursued in the cross-examination of the doctor  and  no question  was put to her on the basis of the said  two  fac- tors.  The High Court was, therefore, right in holding  that the  learned Additional Sessions Judge was wrong  in  giving undue importance to the said circumstances. The learned Additional Sessions Judge again relied upon  the statement  of  Dr.  Balbir  Kaur. to  the  effect  that  the duration  between  the  infliction of the  injuries  on  the deceased and their death might be 4 or 5 hours and concluded that  the  witnesses were not speaking the truth  when  they said  that the deceased succumbed to the injuries either  on the  spot or immediately after receiving the injuries.   The doctor in her evidence said that in the case of Gurdit Singh the  injuries were anti-mortem in nature and that the  prob- able  time between the infliction of the injuries and  death was a few hours or so and that in the case of Pal Singh also she  said that the probable time between the  infliction  of the  injury  and death was a few hours.  This  evidence  was only a mere surmise and was neither intended to be  accurate nor  was  it based up any scientific data.  She  only  meant that  death  had taken place within a few  hours  after  the incident.  Such a bald opinion could not certainly  outweigh the direct evidence in the case.  Some argument was made  in regard to the alleged delay in lodging the first information report  at the police station in support of  the  contention that  the  murder  must have been committed  in  the  night. According  to  the prosecution the murder was  committed  at 5.30 p.m. ; the first information report was lodged at 12.45 a.m. the next day i. e., just after midnight.  From this  it is  stated  that  the  distance between  the  place  of  the incident and the police station is only 6-1/2 miles and that there  is  some evidence to show that the  parties  went  on mares  and that the delay in giving the report supports  the case  that the murder must have been committed only  in  the night.  That was accepted by the learned Additional Sessions Judge.   The  High  Court rightly pointed out  that  in  the circumstances  of the case the first information report  was neither  unduly  nor unnecessarily  delayed.   Ranjit  Singh stated  in the evidence that he did not use mares at all  in going  to  the police station, as the road was not  fit  for using them and the witnesses also stated that they 15 wanted  to go quietly without being noticed by  the  accused

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who were hovering about the place.  In the circumstances  we agree with the High Court that there was no such delay as to discredit  the  evidence  on  the  ground  that  the   first information  report  was concocted and the evidence  was  so shaped  as to fit in the version given in the  first  infor- mation report. Another fact relied upon by the learned Additional  Sessions judge   in  discrediting  the  eye-witnesses  is  that   the witnesses stated that the deceased gave a takwa blow on  the head of Nihal Singh, but the medical examination showed only a  small  abrasion  on  his  left  thumb.   The  High  Court explained  that  the witnesses must be describing  only  the movements  of the accused with their weapons and they  could not obviously give evidence as to where a particular  weapon hit the body, for that would depend upon not only the manner in  which the persons wielded their weapons but also on  the movements  of the victim.  A hit aimed at the head  may,  if the  victim  moves aside, miss altogether the  body  of  the victim  or  fall on a part of his body different  from  that aimed  at.  There is certainly force in what the High  Court said. It  was  then  stated that  according  to  some  prosecution witnesses  the accused had raised their weapons with a  view to  using them against Tara Singh and indeed surrounded  him and that, if that version was upheld, it was impossible  for Tara  Singh to escape unhurt.  If that be so,  the  argument proceeded,  the version given by the  prosecution  witnesses must  be  untrue.  This argument is built upon  the  English expression   "surrounded",  which  is  translated   from   a corresponding  word  in the Punjabi language.  We  are  told that  the Punjabi expression would also mean "pursued".   Be it as it may, no argument could be built upon that,  because in the context, the witnesses could have only meant that the accused pursued Tara Singh. We  have been taken through the judgment of the High  Court. We  are satisfied that the High Court has borne in mind  the principles laid down by this Court in Sanwat Singh’s case(1) and has considered the entire evidence (1)  [1961] 3 S.C.R. 120, 129. 16 carefully and arrived at the finding of fact as it did.   We do not see any exceptional circumstances to depart from  the usual practice and review the evidence over again. Then  it  is  contended that on the facts found  a  case  of private defence has been made out.  It may be mentioned that the plea of private defence has not been taken either before the  learned  Additional Sessions judge or before  the  High Court  on  appeal.  Nor is there any foundation for  such  a plea on the facts found.  The argument is mainly built  upon the  description of the event by the eye-witnesses.  P.W.  2 described the incident thus:               "While  the  accused were still  chasing  Tara               Singh, my father Gurdit Singh and brother  Pal               Singh came out of their house, Pal Singh armed               with a takwa.               When  Gurdit Singh and Pal Singh came  out  of               their house they requested the accused not  to               beat  Tara  Singh.  Dalip Singh,  accused,  on               hearing  those words of Gurdit Singh  and  Pal               Singh,  took  Pal  Singh  in  his  grasp  from               behind.   At that stage Nihal Singh,  accused,               gave a dang blow at the head of Pal Singh, Pal               Singh  then  used his takwa in  self  defence,               against  Darshan  Singh,  accused,  using  the               blunt side thereof.  Thereafter, Harbans Singh

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             accused,  gave  a takwa blow using  the  blunt               side thereof to Pal Singh. It is argued that after Tara Singh practically escaped  from the  attacks of the assailants, Darshan Singh just held  the hand  of Pal Singh from behind whereupon Pal Singh used  his Takwa  and in self-defence the accused used  their  weapons. This argument was addressed on the assumption that no  takwa blow was aimed on the head of Pal Singh and the accused only grasped Pal Singh.  If that was so, the argument  proceeded, Pal  Singh  in  using  his  takwa  was  the  aggressor  and, therefore,  the accused were entitled to defend  themselves. If  we  accept  this argument, we would  be  misreading  the evidence.   Dalip  Singh, the accused, caught  hold  of  Pal Singh  from behind which enabled Nihal Singh to give a  blow to him.  The said act of Dalip Singh and the immediate                                17 blow  given  to  Pal Singh by Nihal Singh  followed  by  the subsequent blows by the other accused leave no scope for the argument  of  private defence.  The accused  were  certainly aggressors and no question of private defence would arise in this case. Lastly  it  is  contended  that  the  prosecution  has   not established  any common object of the accused to murder  the deceased  and,  therefore,  the  High  Court  was  wrong  in convicting them under ss. 302/149 of the Indian Penal  Code. It  is said that nothing has been suggested in the  evidence that  the accused were lying in wait to kill Tara  Singh  or his  rescuers,  that the incident  developed  suddenly  and, therefore  there is no common object to kill either  of  the two  deceased.  But the evidence clearly discloses that  all the  accused  conjointly  took  active  part  in  inflicting serious injuries on the two deceased.  Accused-3 grasped Pal Singh  from behind, Accused-1 gave a dang blow on his  head, Accused-5  gave  a takwa blow on him, and after  the  victim fell  down, Accused-2 and 4 gave soti blows to him while  he was lying on the ground ; so too, Accused-2 gave a dang blow on the head of Gurdit Singh.  Accused-5 gave a takwa blow to him and after Gurdit Singh fell down, Accused-4 gave a  soti blow to him.  It is, therefore, obvious that all the accused were  armed  with deadly weapons and that as  soon  as  Tara Singh came they rushed at him and when the deceased came  to rescue him they conjointly used those weapons and gave  them serious  injuries which ended in their immediate death.   In the  circumstances the object to kill the deceased was  writ large on the evidence.  There is no force in this argument. In the result, the appeal falls and is dismissed. RAGHUBAR  DAYAL J.-I agree that the appeal be dismissed.  I, however,  state  about  the approach of the  Court  to  such appeals.   I  do not consider it desirable to lay  down  any limitation about the scope of the jurisdiction of this Court and  the  limits  of the exercise of its  discretion  in  an appeal  under Art. 136 against the judgment of a High  Court convicting  an  accused  after setting aside  the  order  of acquittal made by a subordinate court.  The entire  exercise of the Court’s discretion under Art. 136 is solely dependant on the views of a particular Bench deciding a 18 certain  appeal on the basis of the facts and law and it  is for that Bench as to how to proceed to hear and decide  that appeal.   No useful purpose to my mind, is served by  laying down what appears to a certain Bench to be a preferable mode for  hearing  such appeals and when to  interfere  with  the order of the Court below. It is admitted that the jurisdiction of this Court is  wide. Ordinarily  one would like to exercise it according  to  the

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practice  of  the  Court if that be  definite  and  uniform. Different  Benches  appear to have  proceeded  in  different manner  and to have had different objective outlook  on  the appeal.   Reference may be made to the observations of  this Court in Harnam Singh v. State of Punjab(1)- It  is really for the Bench hearing the special leave  peti- tion  to  consider  as fully as possible  whether  the  case deserves  a hearing in this Court; if it deserves a  hearing whether  that is to be limited to any particular  aspect  of law  or fact and that therefore if the Bench grants  special leave,  it  should  make  clear  the  matters  on  which  it considers  a hearing in this Court desirable  or  necessary. If  no  such indication is given, I would  prefer  that  the appeal be heard both on facts and law.  of course  everybody is  agreed that the appeal is to be heard on points of  law. There  is  also some common agreement that  one  should  not lightly  interfere with the findings of fact arrived  at  by the  High  Court, but in this matter there  is  always  wide scope for different outlook.  It is better that the  counsel for  the parties should know beforehand on what points  that would  be heard so that they come prepared on those  points. What  happens now, to my mind, is that counsel usually  come ready  for  questions  of  law.   The  appellant’s  counsel, however,  tries to induce the Court to go into questions  of fact  and  whenever  he succeeds he has not  much  to  argue thereafter.  The respondent’s counsel, however, is taken un- awares.  He does not come prepared to meet the appellant  on facts.  He can do his best in the circumstances to help  the Court,  and  this  cannot be much.  I  therefore  feel  that dividing the hearing of an appeal under Art. 136 (1)  [1962] Supp.  1 S.C.R. 104. 19 into  two  parts, hearing on a broader view  and  later,  if necessary,  on facts, does not go to make a hearing as  per- fect  as it would be desirable for a proper adjudication  of the  appeal.  If parties know that once they obtain  special leave  without  limitations they will be free  to  argue  on facts, they will come prepared and will present the case  as best as possible for their clients, and the Court too  would be in a better position to decide. of course, after hearing the appeal fully, this Court is  in the  best position as to how to dispose of the  appeal.   It can  surely dispose of it by merely stating that it sees  no reason  to consider the findings of fact to be incorrect  or it may consider those findings and express a different  opi- nion. I  would,  however, as stated earlier, not like  to  express anything with respect to how such an appeal be heard by this Court,  when  it  is not doubted that this  Court  has  full discretion  to hear an appeal on facts and law and has,  for similar reason laid down that the High Court has full  power to review evidence when hearing an appeal against  acquittal under s. 423 Cr.  P.C. Appeal dismissed.