Sethi, J.@mdashAppellant Sukhbir Singh (in Crl.A.No. 650 of 1992) and 8 other accused persons were arrested in FIR No. 166 dated 22.9.1986 of the Police Station Ganaur and after investigation charged for the offences punishable under Sections 302 307 326 324 323 148 and 452 read with Section 149 of the Indian Penal Code by the Additional Sessions Judge, Sonepat. After completion of the trial, appellant sukhbir Singh was convicted u/s 302 IPC and sentenced to imprisonment for life besides paying a fine of Rs. 1000/-. The other accused persons were convicted u/s 302 read with Section 149 and sentenced to imprisonment for life besides paying a fine of Rs. 1000/- each. All accused persons were also convicted under Sections 326/ 149 and sentenced to three years Rigorous Imprisonment and fine of Rs. 500/- each. Upon conviction u/s 148 IPC, the respondents were sentenced to undergo Rigorous Imprisonment for one year and upon conviction under Sections 324/ 149 IPC to undergo Rigorous Imprisonment for one year each. They were also convicted under Sections 323/ 149 and sentenced to six months Rigorous Imprisonment. All the substantive sentences were directed to run concurrently. The appeals filed by the accused persons were disposed of vide the judgment impugned in these appeals by which the conviction and sentence of Sukhbir Singh, appellant u/s 302 IPC was upheld. The conviction and sentence of all the other accused persons under Sections 302/ 149 was, however, set aside. Their convictions and sentences under Sections 326 323 324 with the aid of Section 149 IPC was also set aside. Detention already suffered by accused Pala, Ram Chander, Behari, Baljit, Kidara, Raj, Darya and Tara was considered as sufficient sentence for their respective convictions and for their individual acts under Sections 324 and 323 of the IPC. Pala, accused was further convicted u/s 326 of the IPC and sentenced to undergo three years Rigorous Imprisonment besides paying a fine of Rs. 500/-. The Court found that the said accused had already undergone the sentence awarded.
2. Not satisfied with his conviction and sentence,Accused, Sukhbir Singh has filed Criminal Appeal No. 650 of1992 whereas the State of Haryana has filed SLP against theacquittal of the rest of the accused persons. Leave hasbeen granted in the SLP and as the respondents arerepresented, no separate notices have been issued to them.As accused Ram Chander died after the judgment of theappellate court, he has not been impleaded as a party-respondentin the SLP filed by the State. As Sukhbir Singhconvict-accused-appellant has wrongly been added a party-respondent in the appeal filed by the State, his name isdeleted from the array of the respondents therein.
3. As the facts of the case and the question of law iscommon in both the appeals, they are being disposed of bythis common judgment.
4. The case of the prosecution, as disclosed by GulabSingh (PW10) in his report lodged in the police station, isthat on 22nd September, 1986 it had rained in VillageTiwari. At about 5-5.15 p.m. when the rain had notcompletely stopped and it was still drizzling, Gulab Singh(PW10), brother of the deceased, had come at his brother'sresidence where they were smoking Hukka and chatting. RamNiwas, son of Lachhman (deceased) was sweeping the street infront of his house with a broom and that some mud splashesstuck Sukhbir Singh at a time when he was passing in thestreet. Sukhbir Singh felt offended and is alleged to haveabused Ram Niwas. When Sukhbir Sigh and Ram Niwas wereabusing each other, Lachhman separated them and gave twoslaps to Sukhbir Singh. Sukhbir Singh went away declaringthat a lesson would be taught to them. After sometime allthe 9 accused persons came at the spot. Sukhbir Singh,Behari and Ram Chander accused were carrying Bhalas,accused Pala, Tara and Baljit were carrying Gandasas andaccused Kedara, Darya and Raj were carrying Jailwas.Sukhbir Singh challenged Lachhman to come out so that alesson could be taught to him. When Lachhman proceededtowards the door of his house saying that the matter shouldnot be aggravated and as soon as he reached the door of hishouse, accused Sukhbir Singh gave two thrust blows with hisbhala on the upper right portion of his chest. Lachhmanfell down whereafter accused Ram Chander caught hold thelegs of Lachhman and dragged him out in the street. AccusedBehari gave a bhala blow on the left side of the chest ofLachhman. When Murti, wife of Lachhman tried to rescue herhusband, accused Tara dealt a blow with gandasa which shewarded of on her hand. Accused Pala and Baljit also gavetwo Gandasa blows each to Lachhman. By that time Jagdev,Kitab Singh and Azad Singh had also arrived at the spot.Ram Niwas, son of Lachhman was given a spear blow on theright side of his chest by Ram Chander while accused Daryagave blow with Jailwa lath wise on his head. When Prem Raj,father of the deceased Lachhman and his brother Bikram triedto rescue Lachhman, accused Pala hurled a gandasa blow onthe head of Pema which was warded of on his left hand.Accused Kidara gave two blows with jailwa on the on the headof Pema. Accused Raj gave three jailwa blows lath wise toBikram on his right hand. Accused Pala gave two gandasablows on the head of Gulab Singh while Accused Baljit gave agandasa blow on his left foot. Kitab Singh, Azad Singh andJagdev Singh (PWs) then pushed the accused towards theirhouses. All the injured persons were removed to the PrimaryHealth center, Ganaur. Lachhman injured succumbed to theinjuries and the other injured persons were given medicaltreatment. As condition of Ram Niwas was stated to beserious, he was referred to Civil Hospital, Sonepat fortreatment where Dr. Budh Ram (PW7) examined him and furtherreferred him for treatment to Medical College Hospital,Rohtak. All the accused were arrested by the police on25th September, 1986. They made disclosure statements, inconsequence of which Bhalas, Gandasas and Jailwas wererecovered. After completion of the investigation all theaccused were committed for trail before the Court ofAdditional Sessions Judge, Sonepat. To prove its case, theprosecution examined 17 witnesses besides the formalwitnesses being the police officials. The reports ofForensic Science Laboratory Exhs. PR and PS were alsotendered in evidence. Out of 17 witnesses Gulab Singh, RamNiwas, Jagdev Singh and Azad Singh were stated to be eye-witnessesto the occurrence.
5. In his statement recorded u/s 313 Cr.P.C.Sukhbir Singh, appellant, stated that the complainant-partyhad placed earth in the street in front of their house andthereby blocked the flow of the rainy water. When he wasremoving the blockage to facilitate the flow of water,Lachhman (deceased), Gulab Singh, Bikram, Prem Raj and RamNiwas came there and restrained him from removing the earth.When he was insisting to remove the blockage, accused Behariand Pala also came in the street. The accused persons wereattacked by the complainant-party. Sukhbir Singh, alongwith two other accused persons, also caused injuries to thecomplainant-party in their self-defence. In theirstatements accused Behari and Pala supported the version ofAccused Sukhbir Singh but the remaining accused personsdenied their presence or participation in the occurrence andmaintained that they had been falsely implicated beingrelations of Accused Sukhbir and Behari. Accused Tara setup the plea of alibi contending that he remained in thefactory till 5.30 p.m. on the day of occurrence. The accusedpersons also examined Dr. Bhupesh Chaudhary (DW1) as adefence witness to prove the injuries on the person ofaccused Pala, Sukhbir Singh and Behari.
6. Assailing the acquittal of the accused by the HighCourt vide judgment impugned, Mr. J.P. Dhanda, Advocatesubmitted that the High Court committed a mistake of law byignoring the statements of the eye-witnesses, namely, GulabSingh (PW10), Ram Niwas (PW11), Jagdev Singh (PW12) and AzadSingh (PW13). He further contended that the prosecution hadproved, beyond doubt, that all the accused shared the commonobject in furtherance of which they caused the death ofLachhman (deceased) and inflicted injuries on the PWs andSmt. Murti wife of the deceased. It is contended that inview of the conviction by the learned Additional SessionsJudge of the aforesaid respondents for the commission ofoffence u/s 302 read with Section 149 IPC, theHigh Court was not justified in disturbing such a findingand holding that the prosecution had failed to prove thesharing of the common object of all the accused persons. Itwas suggested that the manner in which the accused came onthe spot armed with deadly weapons and the nature of theinjuries inflicted upon the person of the deceased and otherinjured persons demonstrated in unequivocal terms that thecommon object of the unlawful assembly was to commit theoffences for which they were charged.
7. We have perused the judgment of the trial court andfound that no finding regarding the existence of a commonobject amongst the accused was returned. The trial courtconvicted all the accused persons on being satisfied thatthe occurrence had taken place in which all the accusedparticipated and that as they stood already charged underSections 302/149 IPC, they were liable to be convicted forthe commission of the offence with the aid of Section 149IPC. The High Court, for the first time, examined the wholeevidence to come to a conclusion that all the accusedpersons did not share common object and thus were not liableto be convicted for the commission of the main offence withthe aid of Section 149 IPC. Facing this situation, thelearned counsel appearing for the appellant-State contendedthat the evidence lad by the prosecution and attendingcircumstances of the case proved the existence of the commonobject. The argument, if accepted, can also probabilise thesaid version of the occurrence but does not totally negativethe probable conclusions arrived at by the High Court. Inits judgment the High Court found that there was no previousill-will or enmity between the parties. The occurrence hadtaken place only on a trivial issue when Sukhbir Sigh gotsplashes of mud while Ram Niwas was sweeping the street.The conclusion of the High Court "consequently it appearsthat the possibility of the incident having taken place overthe removal of earth from the street by Sukhbir accused inorder to clear the flow of water is more probable", cannotbe completely ruled out. Such a case was projected by theaforesaid appellant by putting suggestions to theprosecution witnesses and in his own statement recordedunder Section 313 of the Cr.P.C. The High Court furtherheld that, "the possibility cannot be ruled out that Sukhbiraccused had himself reacted to the situation of Lachhmandeceased having given him slaps and wanted to teach him alesson after picking up a spear from his nearby house. Theversion of Gulab Singh and Ram Niwas eye-witnesses thatSukhbir accused mustered help of all the other eight accusedand returned to the spot along with them variously armed isnot acceptable.....". It was then held that, "On theother hand the possibility of all the accused except Sukhbirhaving individually reacted to the situation and came to therescue of Sukhbir on hearing altercation between him on theone side and Lachhman deceased and Ram Niwas on the othercannot be ruled out especially when the perusal of roughsite plan Ex. PZ prepared by Sub Inspector Kewal Ram and thescaled plan Ex. PX prepared by Chandgi Ram PW9 shows that thehouses of Prem Raj and Bikram injured witnesses are locatedfar of from the spot". Analysing the statements ofprosecution witnesses, the court concluded: "If that is sothen it cannot be said by any stretch of imagination thatall the accused had formed an unlawful assembly with thecommon object of killing Lachhman deceased or causinginjuries to the other witnesses". The High Court thereafterexamined the role played by each of the accused persons andheld them responsible for their individual acts for whichthey were convicted and sentenced vide the impugnedjudgment. The Court had also found that accused SukhbirSingh, Pala, Behari had suffered injuries at the hands ofthe complainant-party and not at the hands of the co-accused.Gulab Singh (PW10) and Ram Niwas (PW11) injuredwitnesses were held to have suppressed the genesis of theoccurrence by not disclosing true facts. In our opinion,the findings of the High Court regarding the non existenceof the common object cannot be held to be totally improbableparticularly in the absence of a positive finding in thatbehalf by the trial court.
8. It is now well established that this Court does not, byspecial leave, convert itself into a court to reviewevidence for a third. However, where the High Court isshown to have failed in appreciating the true effect andmaterial change in the version given by the witnesses, insuch a situation it would not be right for this Court toaffirm such a decision when it occasions a failure ofjustice. The power under Article 136 of the Constitution ofIndia is, no doubt, extraordinary in amplitude and thisCourt goes into action only to avert miscarriage of justiceif the existence of perversity is shown in the impugnedjudgment. Unless some serious infirmity or grave failure ofjustice is shown, this Court normally refrains from re-appreciatingthe matter on appeal by special leave. Thefindings of the High Court have to be judged by theyardstick of reason to ascertain whether such findings wereerroneous, perverse and resulted in miscarriage of justice.If the conclusions of the courts below can be supported byacceptable evidence, the Supreme Court will not exercise itsoverriding powers to interfere with such a decision. If twoviews of an occurrence are possible the view taken by one ofthe courts which is favourable to accused should be givencredence. This Court in
"It is a wholesome rule evolved by this Court,which has been consistently followed, that in acriminal case, while hearing an appeal by specialleave, this Court should not ordinarily embarkupon a reappreciation of the evidence, when boththe Sessions Court and the High Court have agreedin their appreciation of the evidence and arrivedat concurrent findings of fact. It must beremembered that this Court is not a regular courtof appeal which an accused may approach as ofright in criminal cases. It is an extraordinaryjurisdiction which this Court exercises when itentertains an appeal by special leave and thisjurisdiction, by its very nature, is exercisableonly when this Court is satisfied that it isnecessary to interfere in order to prevent graveor serious miscarriage of justice. Mere errors inappreciation of the evidence are not enough toattract this invigilator jurisdiction. Or else,this Court would be converted into a regular courtof appeal where every judgment of the High Courtis a criminal case would be liable to bescrutinised for its correctness. This is not thefunction of this Court."
9. In
"We have had occasion to say before and we mayemphasise it once again, that this Court is not aregular court of appeal to which every judgment ofthe High Court in criminal case may be brought upfor scrutinising its correctness. it is not thepractice of this Court to reappreciate theevidence for the purpose of examining whether thefinding of fact concurrently arrived at by theHigh Court and the subordinate courts is corrector not. It is only in rare and exceptional caseswhere there is some manifest illegality or graveand serious miscarriage of justice that this Courtwould interfere with such finding of fact."
10. The same view was followed by this Court in
11. Learned counsel appearing for the appellant-State wasnot in a position to satisfy us that the finding returned bythe High Court with respect to the version of theprosecution was not at all probable or that a conclusionswere based upon only on surmises and conjectures orinadmissible evidence.
12. In view of the settled position of law, as noticed byus, there does not appear to be any justification to setaside the judgment of the High Court in so far as it holdsthe non-existence of common object amongst the accusedpersons and the appeal filed by the State is liable to bedismissed on this ground alone.
13. In the facts and circumstances of the case we are alsoof the opinion that the prosecution did not succeed inproving the existence of common object amongst the accusedpersons to attract the provisions of Section 149 IPC. Anaccused is vicariously guilty of the offence committed byother accused persons only if he is proved to be a member ofan unlawful assembly sharing its common object. There is nodispute to the legal provision that once the existence ofcommon object of unlawful assembly is proved, each member ofsuch an assembly shall be liable for the main offencenotwithstanding his actual participation in the commissionof the offence. It is not necessary that each of theaccused, forming the unlawful assembly, must have committedthe offence with his own hands.
14. Unlawful assembly has been defined u/s 141of the Indian Penal Code as under:
"141. Unlawful assembly -- An assembly of five ormore persons is designated as "unlawful assembly",if the common object of the persons composing thatassembly is --
First - To overawe by criminal force, or show ofcriminal force, the Central or any StateGovernment or Parliament or the Legislature of anyState, or any other public servant in the exerciseof the lawful power of such public servant; or
Second - To resist the execution of any law, or ofany legal process; or
Third - To commit any mischief or criminaltrespass, or other offence; or
Fourth - By means of criminal force, or show ofcriminal force, to any person to take or obtainpossession of any property, or to deprive anyperson of the enjoyment of a right of way, or ofthe use of water or other incorporeal right ofwhich he is in possession or enjoyment, or toenforce any right or supposed right; or
Fifth - By means of criminal force, or show ofcriminal force, to compel any person to do what heis not legally bound to do, or to omit to do whathe is legally entitled to do.
Explanation - An assembly which was not unlawfulwhen it assembled, may subsequently become anunlawful assembly."
15. The prosecution in the instant case could notspecifically refer to any of the objects for which theaccused are alleged to have formed the assembly. Itappears, from the circumstances of the case, that afteraltercation over the splashing of mud on his person andreceiving two slaps on his face from the complainant-party,Sukhbir Singh declared to teach the complainant-party, alesson and went home. Immediately thereafter he alongwithothers came on the spot and as held by the High Courtwanted to remove the obstructions caused in the flow ofwater. As the common object of the assembly is notdiscernible, it can, at the most, be held that Sukhbir Singhintended to cause the fatal blow to the deceased and theother accused accompanied him for the purposes of removingthe obstruction or at the most for teaching a lesson toLachhman and other. At no point of time any of the accusedpersons threatened or otherwise reflected their intention tocommit the murder of the deceased. Merely because the otheraccused person were accompanying him when the fatal blowswere caused by Sukhbir Singh to the deceased cannot provethe existence of the common object specifically in theabsence of any evidence of the prosecution in that behalf. The members of the unlawful assembly can be held liableunder Section 149 of the IPC if it is shown that they knewbefore hand that the offence actually committed was likelyto be committed in prosecution of the common object. It istrue that the common object does not require prior concertand a common meeting of mind before the attack. It candevelop even on spot but the sharing of such an object byall the accused must be shown to be in existence at anytime before the actual occurrence.
16. The High Court, on appreciation of evidence, hasrightly found that the common object of the accused persons,if any, was not to cause the death of the deceased and suchan intention could be attributed only to appellant, SukhbirSingh. the prosecution evidence probabilise the version ofthe accused that the occurrence was sudden andunanticipated. The occurrence, including the quarrel andthe causing of fatal blows to the complainant-party, alltook place within such a narrow compass which renders thestory of the prosecution highly improbable. In the facts andcircumstances of the case, it cannot be said that thefindings returned by the High Court were completelyimprobable. The appeal filed by the State is notsustainable even on merits.
17. Appearing for the appellant Sukhbir Singh, Shri U.R.Lalit, learned Senior Counsel submitted that even if theoccurrence is admitted to have taken place in the mannerfound by the High Court, his client cannot be held guiltyfor the commission of offence punishable u/s 302IPC. It is argued that as the occurrence had taken placewithout pre-meditation, in a sudden fight in the heat ofpassion upon a sudden quarrel, the said appellant isentitled to the benefit of Exception 4 of Section 300 of theIndian Penal Code. It is further contended that the findingof the High Court that the appellant has acted in a cruel orunusual manner cannot be sustained after it is held that theaccused dit not have common object because in that case theappellant Sukhbir Singh is shown to have inflicted two blowson the body of the deceased which are neither cruel norunusual to deprive him the benefit of aforesaid exception.
18. To avail the benefit of Exception 4, the defence isrequired to probabilise that the offence was committedwithout pre-meditation in a sudden fight in the heat ofpassion upon a sudden quarrel and the offender had not takenany undue advantage and the offender had not acted in acruel or unusual manner. The exception is based upon theprinciple that in the absence of pre-meditation and onaccount of total deprivation of self-control but on accountof heat of passion, the offence was committed which,normally a man of sober urges would not resort to. Suddenfight, though not defined under the Act, implies mutualprovocation. It has been held by courts that a fight is notper se palliating circumstance and only unpre-meditatedfight is such. The time gap between quarrel and the fightis an important consideration to decide the applicability ofthe incident. If there intervenes a sufficient time forpassion to subside, giving the accused time to come to normally and the fight takes place thereafter, the killingwould be murder but if the time gap is not sufficient, theaccused may be held entitled to the benefit of thisexception.
19. In the instant case, concededly, there was no enmitybetween the parties and there is no allegation of theprosecution that before the occurrence, the appellant andothers had pre-meditated. As noticed earlier, occurrencetook place when Sukhbir Singh got mud splashes on account ofsweeping of the street by Ram Niwas and a quarrel ensued.The deceased gave slaps to the appellant for no fault ofhis. The quarrel appeared to be sudden on account of heatof passion. The accused went home and came armed in thecompany of others though without telling them his intention to commit the ultimate crime of murder. The time gapbetween the quarrel and the fight is stated to be fewminutes only. According to Gulab Singh (PW10) when SukhbirSingh was passing in the street and some mud got splashed onhis clothes, he abused Ram Niwas. They both grappled witheach other whereupon Lachhman (deceased) intervened andseparated them. Accused Sukhbir had abused Lachhman whogave him two slaps. The said accused thereafter went to hishome after stating that he would teach him a lesson for theslaps which had been given to him. After some time he,along with other accused persons, came at the spot an thefight took place. His own house is at a different place.There is a street in between his house an the house ofLachhman (deceased). On the northern side of his house, thehouse of the appellant is situated. Similarly Ram Niwas(PW11) has stated that after the quarrel the accused wenttowards his house and within a few minutes he came back withother accused persons. It is, therefore, probable thatthere was no sufficient lapse of time between the quarreland the fight which means that the occurrence was "sudden"within the meaning of Exception 4 of Section 300 IPC.
20. The High Court has also found that the occurrence hadtaken place upon a sudden quarrel but as the appellant wasfound to have acted in a cruel an unusual manner, he wasnot given the benefit of such exception. For holding him tohave acted in a cruel and unusual manner, the High Courtrelied upon the number of injuries and their location on thebody of the deceased. In the absence of the existence ofcommon object, the appellant cannot be held responsible forthe other injuries caused to the person of the deceased. Heis proved to have inflicted two blows on the person of thedeceased which were sufficient in the ordinary course ofnature to cause his death. The infliction of the injuriesand their nature proves the intention of the appellant butcausing of such two injuries cannot be termed to be eitherin a cruel unusual manner. All fatal injuries resulting indeath cannot be termed as cruel or unusual for the purposesof not availing the benefit of Exception 4 of Section 300IPC. After the injuries were inflicted and the injured hadfallen down, the appellant is not shown to have inflictedany other injury upon his person when he was in a helplessposition. it is proved that in the heat of passion upon asudden quarrel followed by a fight, the accused who wasarmed with Bhala caused injures at random and thus did notact in a cruel or unusual manner.
21. To support the case of the prosecution, learned counselfor the State of Haryana relied upon Virender v. State (NCT)of Delhi [IV (2000) CCR 266 (SC)]. We have perused theaforesaid judgment and find it totally distinguishablebecause in that case nothing was shown to the court that theoccurrence had taken place in a sudden fight and in the heatof passion.
22. Keeping in view the facts and circumstances of thecase, we are of the opinion that in the absence of theexistence of common object Sukhbir Singh is proved to havecommitted the offence of culpable homicide without pre-meditationin a sudden fight in the heat of passion upon asudden quarrel and did not act in a cruel or unusual mannerand his case is covered by Exception 4 of Section 300 IPCwhich is punishable u/s 304 (Part I) of the IPC.The findings of the courts below holding the aforesaidappellant guilty of offence of murder punishable underSection 302 IPC is set aside and he is held guilty for thecommission of offence of culpable homicide not amounting tomurder punishable u/s 304 (Part I) of the IPC andsentenced to undergo Rigorous Imprisonment for 10 years andto pay a fine of Rs. 5000/-. In default of payment of fine,he shall undergo further Rigorous Imprisonment for one year.
23. The Criminal Appeal No. 257 of 2002 is dismissed andCriminal Appeal No. 650 of 1992 is partly allowed. The BailBonds of appellant Sukhbir stand cancelled and is directedto be taken into custody forthwith for serving out theremaining part of his sentence.
