Union Of India & Ors vs Sunil Kumar Sarkar on 28 February, 2001

0
83
Supreme Court of India
Union Of India & Ors vs Sunil Kumar Sarkar on 28 February, 2001
Author: S Hegde
Bench: S.P.Bharucha, N.S.Hegde, Y.K.Sabharwal
           CASE NO.:
Appeal (civil) 7769  of  1995



PETITIONER:
UNION OF INDIA & ORS.

	Vs.

RESPONDENT:
SUNIL KUMAR SARKAR

DATE OF JUDGMENT:	28/02/2001

BENCH:
S.P.Bharucha, N.S.Hegde, Y.K.Sabharwal




JUDGMENT:

L…..I………T…….T…….T…….T…….T…….T..J

SANTOSH HEGDE, J.

A General Court Martial (GCM) under the provisions of
the Army Act, 1950 was initiated against the respondent
herein for certain allegations of defrauding the Border Road
Organisation (the Organisation) in which the respondent
was working as a Superintendent, Buildings & Roads,
Grade-II. On the conclusion of the said GCM proceedings, he
was found guilty of some of the charges framed against him
and was sentenced to undergo R.I. for one year which
sentence under the Army Act was subject to confirmation by
the higher authorities under Chapter XII of the Army Act.
Pursuant to the said sentence, the respondent was taken into
custody on the very day i.e. 28th July, 1976. When the
conviction and sentence was taken up by the confirming
authority, same was remanded back to the GCM for
reconsideration. On remand, the GCM again heard the
respondents counsel and modified its earlier order whereby
while finding the respondent again guilty reduced the
earlier sentence of R.I. for one year to that of six
months. This order was also subject to confirmation.
However, in view of the fact that the respondent who by
virtue of the first order was undergoing the sentence, had
completed the period of six months by that time, the GCM
directed the release of the respondent from custody on 28th
January, 1977. The second order of conviction was confirmed
by the authority concerned on 26.3.1977. In the meantime,
the authorities acting under Rule 19 of the Central Civil
Services (Classification, Control and Appeal) Rules, 1965
(for short the Central Rules) with a view to initiate
disciplinary proceedings issued a show cause notice dated
26.3.1977 calling upon him to show cause why suitable order
be not passed against him. The respondent submitted his
reply to the said show cause notice. The authority on the
conclusion of the said departmental inquiry under the said
Rule dismissed the respondent from service. The appeals and
the review petitions filed by the respondent to the
appropriate authorities against his conviction by the GCM as
well as his dismissal under the Central Rules came to be
dismissed. The respondent challenged these orders of his
conviction under the Army Act as well as his dismissal under
the Rules by way of a writ petition before a learned Single
Judge of the Calcutta High Court who, after hearing the
parties, noticed certain defects in the orders impugned
before him, hence, allowed the writ petition and issued the
following directions:

The Chief Engineer, Project Sevak is directed to give
a personal hearing to the petition and after such hearing he
shall pass a fresh order either confirming the earlier order
dated the 23rd October, 1978, or passing such an order as he
may deem fit and proper. The fresh order must contain the
reasons. Similarly I direct the Director- General of Border
Roads to give a personal hearing to the petitioner in
connection with his post-confirmation petition and pass a
fresh order either confirming the earlier order dated the
23rd March, 1979, or passing a fresh order as he may think
fit and proper. The fresh orders must contain the reasons.

Against the said judgment of the learned Single Judge,
none of the respondents before the learned Single Judge, who
are now appellants before us, preferred any appeal. Hence,
the said order has become final so far as they are
concerned. The respondent, however, not being satisfied,
preferred an appeal before the Division Bench of the said
High Court and the High Court as per its impugned order
allowed the said appeal holding that the Court Martial
proceedings as well as the disciplinary proceedings
initiated by the appellants were vitiated by the fact that
the authorities had chosen to keep the respondent under
suspension without there being any reason therefor, and that
the respondent was taken into custody immediately after the
pronouncement of the sentence by the GCM without the said
order being confirmed as required by the Army Act. The
Division Bench also found against the disciplinary authority
for having passed the impugned order of dismissal solely
based on the finding of the Court Martial proceedings which,
according to the Division Bench, showed that the
disciplinary authority had a pre-determined mind. It also
observed that the findings of the Court Martial proceedings
were not based on the material on record and amounted to a
perverse order. It is against this order of the Division
Bench dated 30.3.1994 that the appellants are before us in
this appeal. We have heard learned counsel for the parties,
and perused the records. As noticed above, one of the
grounds relied upon by the Division Bench to pass the
impugned order was that the respondent was kept under
suspension by the disciplinary authority after the GCM
proceedings were over and while he was still in custody.
According to the Division Bench, this was contrary to Rule
10 of the Central Rules inasmuch as certain condition
precedent required under the Rule was not existing when the
order of suspension was made. It seems that the Division
Bench was of the opinion that once a person is in custody
the question of keeping him under suspension does not arise.
We do not agree with this opinion of the Division Bench
because the Division Bench failed to notice that the
respondent was due to be released on 27.1.1977 after serving
the six months R.I. imposed on him. After his release in
the normal course, he was entitled to claim reinstatement in
service unless departmental proceedings were initiated
against him for the misconduct for which he was convicted.
Therefore, the authority thought it necessary to keep the
respondent under suspension, hence, the orders under Rule 10
of the Central Rules were issued keeping the respondent
under suspension. Rule 10(1)(a) of the Central Rules
empowers the appointing authority to place a Government
servant under suspension if an inquiry is either being
conducted against him or is contemplated against him. In
the present case, a disciplinary authority had decided to
initiate the disciplinary proceeding against the respondent
and pursuant to the said decision and in exercise of the
power vested in him by Rule 10(1)(a) of the Central Rules,
the respondent was kept under suspension. Therefore, the
concerned authority was well within its statutory power to
keep the respondent under suspension and, in our opinion,
the High Court fell in error in finding fault with the said
decision on the ground that there was no need to keep the
respondent under suspension when he is undergoing a sentence
of imprisonment. The next finding of the Division Bench
that the GCM erred in taking the respondent into custody
immediately after it imposed the sentence without the said
order of sentence being confirmed by the higher authority is
also contrary to the provisions of the Army Act. Section
167
of the said Act mandates that when a person is sentenced
by a Court Martial his sentence shall be reckoned to
commence on the day on which the original proceedings were
signed by the Presiding Officer whether such sentence is
revised or not. In the instant case, the Court Martial
pronounced the sentence on 28.7.1976 and the respondent was
taken into custody on the same day which was in accordance
with Section 167 of the Army Act. The Division Bench, in
our opinion, did not notice this provision of the Army Act
when it found fault with the GCM for taking the respondent
into custody before the sentence imposed by it was confirmed
by the confirming authority. The Division Bench also found
fault with the order of dismissal passed by the disciplinary
authority on the ground that the same was solely based on
the conviction suffered by the respondent in the Court
Martial proceeding. The court in this regard held that the
disciplinary authority had a pre-determined mind when he
passed the order of dismissal. Here again, in our opinion,
the Division Bench did not take into consideration Rule 19
of the Central Rules which contemplates that if any penalty
is imposed on a Government servant on his conviction in a
criminal charge, the disciplinary authority can make such
order as it deems fit (dismissal from service is one such
order contemplated under Rule 19) on initiating disciplinary
proceedings and after giving the delinquent officer an
opportunity of making a representation on the penalty
proposed to be imposed. As a matter of fact, this type of
disciplinary procedure is contemplated in the Constitution
itself as could be seen in Article 311(2)(a). Rule 19 of
the Central Rules is in conformity with the above provisions
of the Constitution. This, as we see, is a summary
procedure provided to take disciplinary action against a
Government servant who is already convicted in a criminal
proceeding. The very foundation of imposing punishment
under Rule 19 is that there should be a prior conviction on
a criminal charge. Therefore, the question of having a
pre-determined mind does not arise in such cases. All that
a disciplinary authority is expected to do under Rule 19 is
to be satisfied that the officer concerned has been
convicted of a criminal charge and has been given a show
cause notice and reply to such show cause notice, if any,
should be properly considered before making any order under
this Rule. Of course, it will have to bear in mind the
gravity of the conviction suffered by the Government servant
in the criminal proceedings before passing any order under
Rule 19 to maintain the proportionality of punishment. In
the instant case, the disciplinary authority has followed
the procedure laid down in Rule 19, hence, we cannot agree
with the Division Bench that the said disciplinary authority
had any pre-determined mind when it passed the order of
dismissal. The Division Bench next came to the conclusion
that the finding arrived at by the GCM is perverse. In
regard to this finding, this is what the court has observed
in its judgment:

It also appear to us that the decision arrived at by
the G.C.M. was arrived at without consideration of evidence
and as such the same are perverse. There has been no proper
consideration of relevant facts and materials and no
reasonable man acting bona fide and with proper
consideration could have come to the impugned finding,
rendering such decision/conviction and all proceedings
subsequent thereto to be void ab initio.

A perusal of the judgment impugned clearly shows that
its finding that the decision of the GCM was arrived at
without consideration of evidence is not factually supported
by any material and is only an ipse dixit of the court. The
Division Bench has not pointed out what is the evidence that
has not been considered by the GCM and how its findings are
perverse. In the absence of these basic facts, we are
unable to agree with the Division Bench that the findings of
the GCM on facts is either not based on material on record
or is perverse. Before concluding we must point out that
during the course of arguments, a doubt was raised as to the
maintainability of the concurrent proceedings initiated
against the respondent by the authorities. The respondent
in this case has been punished for the same misconduct both
under the Army Act as also under the Central Rules. Hence,
a question arises whether this would tantamount to double
jeopardy and is in violation of Article 20 of the
Constitution of India. Having considered the arguments
addressed in this behalf, we are of the opinion that so far
as the concurrent proceedings initiated by the Organisation
against the respondent both under the Army Act and the
Central Rules are concerned, they are unexceptionable.
These two proceedings operate in two different fields though
the crime or the misconduct might arise out of the same act.
The Court Martial proceedings deal with the penal aspect of
the misconduct while the proceedings under the Central Rules
deal with the disciplinary aspect of the misconduct. The
two proceedings do not overlap. As a matter of fact,
Notification No.SRO-329 dated 23.9.1960 issued under the
Central Rules and under sub-sections (1) and (4) of Section
4
of the Army Act makes this position clear. By this
notification, the punishments that could be meted out under
the Central Rules have been taken out of the purview of the
Court Martial proceedings under the Army Act. We further
find support for this view of ours in the judgment of this
Court in R. Viswan & Ors. v. Union of India & Ors. (AIR
1983 SC 658). As noticed above, in view of the fact that
the appellants have not challenged the directions issued by
the learned Single Judge in the writ appeal, the same remain
undisturbed by this judgment while we allow this appeal and
quash the judgment of the Division Bench impugned before us.
No order as to costs.






















      1

      12
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION


CRIMINAL APPEAL NO.821	OF 2000

Suresh and anr.						Appellant

:versus:

State of U.P.							Respondent

WITH

CRIMINAL APPEAL NO. 160	 OF 2001

State of U.P.							 Appellant

:versus:

Pavitri Devi							 Respondent







				J U D G M E N T
THOMAS, J.

Section 34 of the Indian Penal Code is a very commonly
invoked provision in criminal cases. With a plethora of
judicial decisions rendered on the subject the contours of
its ambit seem well neigh delineated. Nonetheless, when
these appeals were heard a two-judge Bench felt the need to
make a re-look at the provision as to whether and if so to
what extent it can be invoked as an aid in this case. Hence
these appeals were heard by a larger Bench.
In one of the appeals A-1 Suresh and his brother-in-law
A-2 Ramji are fighting their last chance to get extricated
from the death penalty imposed on them by a Sessions Court
which was confirmed by a Division Bench of the High Court.
In the other appeal Pavitri Devi, the wife of A-1 Suresh
(also sister of A-2 Ramji) is struggling to sustain the
acquittal secured by her from the High Court in reversal of
the conviction for murder ordered by the Sessions Court with
the aid of Section 34 IPC.

On the night of 5.10.1996 when Ramesh (brother of
appellant Suresh) and his wife and children went to bed as
usual they would have had no foreboding that it was going to
be the last night they were sleeping on this terrestrial
terrain. But after they, in their sleep, crossed the
midnight line and when the half crescent moon appeared with
its waned glow above their house the night turned red by the
bloodiest killing spree befallen the entire family. The
motely population of that small house were whacked to pieces
by armed assailants, leaving none, but a single tiny tot,
alive. The sole survivor of the gory carnage could have
seen what happened inside his sweet home only in the light
which itself turned carmine. He narrated the tale before
the Sessions Court with the visible scars of the wounds he
sustained on his person.

That infant witness (PW-3 Jitendra) told the trial
court that he saw his uncle (A-1 Suresh) in the company of
his brother-in-law (A-2 Ramji) acting like demons, cutting
the sleeping children with axe and chopper. He also said
that his aunt (A-3 Pavitri Devi) clutched the tuft of his
mothers hair and yelled like a demoness in thirst for the
blood of the entire family.

Lalji (PW-1), the uncle of the deceased Ramesh (who is
uncle of A-1 Suresh also) and Amar Singh (PW-2) a neighbour
gave evidence supporting the version of PW-3 Jitendra. But
the said two witnesses did not attribute any overt act to
Pavitri Devi except saying that she too was present near the
scene of occurrence. The house of the accused was situated
not far away from the scene of occurrence but across the
road which abuts the house of the deceased.

The doctor (PW5-C.M. Tiwari) who conducted the autopsy
on the dead bodies of all the deceased described the
horrifying picture of the mauled bodies. The youngest of
the victims was a one year old child whose skull was cut
into two and the brain was torn asunder. The next was a
three year old male child who was killed with his neck axed
and the spinal cord, trachea and the larynx were snipped.
The next in line was PW-3 Jitendra – a seven year old child.
(His injuries can be separately stated). His immediate next
elder was Monisha a nine year old female child, who too
was axed on the neck, mouth and chest with her spinal cord
cut into two.

The mother of those little children Ganga Devi was
inflicted with six injuries which resulted in her skull
being broken into pieces. The last was Ramesh the bread
winner of the family, who was the father of the children.
Four wounds were inflicted on him. All of them were on neck
and above that. The injuries on Ramesh, when put together,
had neared just short of decapitation.

PW-3 Jitendra had three incised wounds on the scapular
region, but the doctor who attended on him (PW-6 S.K. Verma)
did not probe into the depth of one of them, presumably
because of the fear that he might require an immediate
surgical intervention. However, he was not destined to die
and hence the injuries inflicted on him did not turn fatal.

The motive for the above dastardly massacre was the
greed for a bit of land lying adjacent to the house compound
of the deceased which A-1 Suresh claimed to be his. But
deceased Ramesh clung to that land and it resulted in
burgeoning animosity in the mind of Suresh which eventually
grew alarmingly wild.

The evidence of PW-1 Lalji and PW-2 Amar Singh was
considered by the Session Court in the light of various
contentions raised by the counsel for the accused. The
trial judge found the said evidence reliable. The Division
Bench of the High Court considered the said evidence over
again and they did not see any reason to dissent from the
finding made by the trial court. The evidence of PW-3
Jitendra, the sole survivor of the carnage, was evaluated
with greater care as he was an infant of seven years.
Learned Judges of the Division Bench of the High Court
accepted the evidence of PW-3 only to the extent it secured
corroboration from the testimony of PWs.1 and 2.

Though Mr. K.B. Sinha, learned senior counsel made an
endeavour to make some tears into the fabric of the
testimony of PWs.1 and 2 he failed to satisfy us that there
is any infirmity in the findings recorded by the two courts
regarding the reliability of the evidence of those two
witnesses. As the learned senior counsel found it difficult
to turn the table regarding the evidence against the accused
which is formidable as well as trustworthy, he focussed on
two aspects. First is that acquittal of Pavitri Devi does
not warrant interference from this Court. Second is that
this is not a case belonging to the category which compels
the court to award death penalty to the two appellants,
Suresh and Ramji.

We will now deal with the role played by Pavitri Devi
to see whether the court can interfere with the acquittal
order passed in her favour by the High Court. PW-3 said
that while he was sleeping the blood gushed out of the
wounds sustained by his father reached his mouth and when he
woke up he saw the incident. According to him, Pavitri Devi
caught hold his mothers hair and pulled it up, thereafter
she went outside and exhorted that everybody should be
killed. But PWs.1 and 2 did not support the aforesaid
version pertaining to Pavitri Devi. According to them, when
they reached the scene of occurrence Pavitri Devi was
standing in front of the house of the deceased while the
other two were inside the house engaged in the acts of
inflicting blows on the victims.

The position which prosecution succeeded in
establishing against A-3 Pavitri Devi is that she was also
present at the scene of occurrence. Learned counsel for the
State contended that such presence was in furtherance of the
common intention of the three accused to commit the murders
and hence she can as well be convicted for the murders under
Section 302 IPC with the aid of Section 34 IPC. Mr. K.B.
Sinha, learned counsel contended that if Section 34 IPC is
to be invoked as against Pavitri Devi the prosecution should
have established that she had done some overt act in
furtherance of the common intention.

We heard arguments at length on the ambit of Section 34
IPC. We have to consider whether the accused who is sought
to be convicted with the aid of that Section, should have
done some act, even assuming that the said accused also
shared the common intention with the other accused.

Section 34 reads thus:

Acts done by several persons in furtherance
of common intention.- When a criminal act
is done by several persons in furtherance of
the common intention of all, each of such
persons is liable for that act in the same
manner as if it were done by him alone.

As the section speaks of doing a criminal act by
several persons we have to look at Section 33 IPC which
defines the act. As per it, the word act denotes as
well a series of acts as a single act. This means a criminal
act can be a single act or it can be the conglomeration of a
series of acts. How can a criminal act be done by several
persons?

In this context a reference to Section 35, 37 and 38 of
IPC, in juxtaposition with Section 34, is of advantage.
Those four provisions can be said to belong to one cognate
group wherein different positions when more than one person
participating in the commission of one criminal act are
adumbrated. Section 35 says that when an act is done by
several persons each of such persons who joins in the act
with mens rea is liable for the act in the same manner as
if the act were done by him alone with that knowledge or
intention. The section differs from section 34 only
regarding one postulate. In the place of common intention
of all such persons (in furtherance of which the criminal
act is done), as is required in Section 34, it is enough
that each participant who joins others in doing the criminal
act, has the required mens rea.

Section 37 deals with the commission of an offence by
means of several acts. The section renders any one who
intentionally cooperates in the commission of that offence
by doing any one of those acts to be liable for that
offence. Section 38 also shows another facet of one criminal
act being done by several persons without connecting the
common bond i.e. in furtherance of the common intention of
all. In such a case they would be guilty of different
offence or offences but not for the same offence. Among the
above four provisions the common denominator is the
participation of several persons (more than one person) in
the commission of a criminal act. The special feature of
Section 34 is only that such participation by several
persons should be in furtherance of the common intention
of all.

Hence, under Section 34 one criminal act, composed of
more than one act, can be committed by more than one persons
and if such commission is in furtherance of the common
intention of all of them, each would be liable for the
criminal act so committed.

To understand the section better it is useful to recast
it in a different form by way of an illustration. This would
highlight the difference when several persons do not
participate in the crime committed by only one person even
though there was common intention of all the several
persons. Suppose a section was drafted like this: When a
criminal act is done by one person in furtherance of the
common intention of several persons each of such several
persons is liable for that act in the same manner as if it
were done by all such persons.

Obviously Section 34 is not meant to cover a situation
which may fall within the fictitiously concocted section
caricatured above. In that concocted provision the co-
accused need not do anything because the act done by the
principal accused would nail the co-accused also on the
ground that such act was done by that single person in
furtherance of the common intention of all the several
persons. But Section 34 is intended to meet a situation
wherein all the co-accused have also done something to
constitute the commission of a criminal act.

Even the concept of presence of the co-accused at the
scene is not a necessary requirement to attract Section 34,
e.g. the co-accused can remain a little away and supply
weapons to the participating accused either by throwing or
by catapulting them so that the participating accused can
inflict injuries on the targeted person. Another
illustration, with advancement of electronic equipment can
be etched like this: One of such persons in furtherance of
the common intention, overseeing the actions from a distance
through binoculars can give instructions to the other
accused through mobile phones as to how effectively the
common intention can be implemented. We do not find any
reason why Section 34 cannot apply in the case of those two
persons indicated in the illustrations.

Thus to attract Section 34 IPC two postulates are
indispensable. (1) The criminal act (consisting of a series
of acts) should have been done, not by one person, but more
than one person. (2) Doing of every such individual act
cumulatively resulting in the commission of criminal offence
should have been in furtherance of the common intention of
all such persons.

Looking at the first postulate pointed out above, the
accused who is to be fastened with liability on the strength
of Section 34 IPC should have done some act which has nexus
with the offence. Such act need not be very substantial, it
is enough that the act is only for guarding the scene for
facilitating the crime. The act need not necessarily be
overt, even if it is only a covert act it is enough,
provided such a covert act is proved to have been done by
the co-accused in furtherance of the common intention. Even
an omission can, in certain circumstances, amount to an act.
This is the purport of Section 32 IPC. So the act mentioned
in Section 34 IPC need not be an overt act, even an illegal
omission to do a certain act in a certain situation can
amount to an act, e.g. a co-accused, standing near the
victim face to face saw an armed assailant nearing the
victim from behind with a weapon to inflict a blow. The co-
accused, who could have alerted the victim to move away to
escape from the onslaught deliberately refrained from doing
so with the idea that the blow should fall on the victim.
Such omission can also be termed as an act in a given
situation. Hence an act, whether overt or covert, is
indispensable to be done by a co-accused to be fastened with
the liability under the section. But if no such act is done
by a person, even if he has common intention with the others
for the accomplishment of the crime, Section 34 IPC cannot
be invoked for convicting that person. In other words, the
accused who only keeps the common intention in his mind, but
does not do any act at the scene, cannot be convicted with
the aid of Section 34 IPC.

There may be other provisions in the IPC like Section
120B
or Section 109 which could be invoked then to catch
such non participating accused. Thus participation in the
crime in furtherance of the common intention is sine qua non
for Section 34 IPC. Exhortation to other accused, even
guarding the scene etc. would amount to participation. Of
course, when the allegation against an accused is that he
participated in the crime by oral exhortation or by guarding
the scene the court has to evaluate the evidence very
carefully for deciding whether that person had really done
any such act.

A Division Bench of the Madras High Court has said as
early as in 1923 that evidence of some distinct act by the
accused, which can be regarded as part of the criminal act
in question, must be required to justify the application of
Section 34 IPC. (vide Aydrooss vs. Emperor, AIR 1923 Madras

187).

In Barendra Kumar Ghosh vs. Emperor (AIR 1925 PC 1)
the Judicial Commission after referring to the cognate
provisions adverted to above, held thus:

Read together, these sections are
reasonably plain. S.34 deals with the doing
of separate acts, similar or diverse by
several persons; if all are done in
furtherance of a common intention, each
person is liable for the result of them all,
as if he had done them himself, for that
act and the act in the latter part of
the section must include the whole action
covered by a criminal act in the first
part, because they refer to it.

We have come across the observations made by another
Judicial Commission of the Privy Council of equal strength
in Mahbub Shah vs. Emperor (AIR 1945 PC 118). The
observation is that Section 34 IPC can be invoked if it is
shown that the criminal act was done by one of the accused
in furtherance of the common intention of all. On the fact
situation their Lordships did not have to consider the other
component of the Section. Hence the said observation cannot
be understood to have obviated the necessity of proving that
the criminal act was done by several persons which is a
component of Section 34 IPC.

In Pandurang vs. State of Hyderabad [AIR 1955 SC 216]
Vivian Bose J., speaking for a three-judge bench of this
Court focused on the second component in Section 34, IPC
i.e. in furtherance of the common intention. There was no
need for the bench to consider about the acts committed by
the accused charged, in order to ascertain whether all the
accused committed the criminal act involved therein. In
other words the first postulate was not a question which
came up for consideration in that case. Hence the said
decision, cited by both sides for supporting their
respective contentions is not of much use in this case.

Mr. Pramod Swarup, learned counsel for the State
invited our attention to the decision of this Court in State
of U.P. vs. Iftikhar Khan and ors
. {1973 (1) SCC 512} in
which it is observed that to attract Section 34 IPC it is
not necessary that any overt act should have been done by
the co-accused. In that case four accused persons were
convicted on a fact situation that two of them were armed
with pistols and the other two were armed with lathis and
all the four together walked in a body towards the deceased
and after firing the pistols at the deceased all the four
together left the scene. The finding of fact in that case
was also the same. When a plea was made on behalf of those
two persons who were armed with lathis that they did not do
any overt act, this Court made the above observation. From
the facts of that case it can be said that there was no act
on behalf of the two lathi-holders although the deceased was
killed with pistols alone. The criminal act in that case
was done by all the persons in furtherance of the common
intention to finish the deceased. Hence the observation made
by Vaidialingam, J., in the said case has to be understood
on the said peculiar facts.

It is difficult to conclude that a person, merely
because he was present at or near the scene, without doing
anything more, without even carrying a weapon and without
even marching along with the other assailants, could also be
convicted with the aid of Section 34 IPC for the offence
committed by the other accused. In the present case, the
FIR shows that A-3 Pavitri Devi was standing on the road
when the incident happened. Either she would have reached
on the road hearing the sound of the commotion because her
house is situated very close to the scene, or she would have
merely followed her husband and brother out of curiosity
since they were going armed with axe and choppers during the
wee hours of the night. It is not a necessary conclusion
that she too would have accompanied the other accused in
furtherance of the common intention of all the three.

Mr. Pramod Swarup, learned counsel for the State
contended that if she remained at the scene without sharing
the common intention she would have prevented the other two
accused from doing the ghastly acts because both of them
were her husband and brother respectively. The inaction of
Pavitri Devi in doing so need not necessarily lead to the
conclusion that she shared a common intention with others.
There is nothing to show that she had not earlier tried to
dissuade her husband and brother from rushing to attack the
deceased.

Thus we are unable to hold that Pavitri Devi shared
common intention with the other accused and hence her
remaining passively on the road is too insufficient for
reversing the order of acquittal passed by the High Court in
order to convict her with the aid of Section 34 IPC.

Mr. K.B. Sinha, learned senior counsel made an all out
effort to save the convicted appellants from death penalty.
The trial court and the High Court have given very cogent
reasons and quite elaborately for choosing the extreme
penalty. Knowing fully well that death penalty is now
restricted to the rarest of rare cases in which the lesser
alternative is unquestionably foreclosed as held by the
Constitution Bench in Bachan Singh vs. State of Punjab {1980
(2) SCC 684} we could not persuade ourselves in holding that
the acts committed by A-1 Suresh and A-2 Ramji should be
pulled out of the contours of the extremely limited sphere.
Mr. K.B. Sinha cited a number of decisions including Panchhi
and ors. vs. State of U.P
. {1998 (7) SCC 177} in an
endeavour to show that this Court had chosen to give the
alternative sentence in spite of the ferocity of the acts
perpetrated and a number of victims involved. None of such
cases is comparable with the facts in this case. Even after
bestowing our anxious consideration we cannot persuade
ourselves to hold that this is not a rarest of rare cases in
which the lesser alternative is unquestionably foreclosed.

Accordingly we dismiss both the appeals.

J
[ K.T. Thomas ]

New Delhi;

March 2, 2001.

1

18

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 247 OF 1991


Sohan & Anr.							... Appellants

Versus

State of Haryana & Anr.					... Respondents

With

Criminal  Appeal No. 731 of 1991

Rajinder and others						... Appellants

Versus

State of Haryana						... Respondents






J U D G M E N T

Shivaraj V. Patil J.


These appeals are directed against the judgment and order
of the High Court of Punjab & Haryana made in Criminal Appeal No.
454-DB of 1985.

These appellants were accused nos. 1 to 6 before the
Sessions Court. A-1 is the father of A-2. A-3 is the father of
A-4 to A-6. A-1 and A-3 are brothers by birth.

The prosecution case as unfolded by PW-7 at the trial is
that on 11.2.1985 the deceased Daya Nand and PW-7 Hoshiar Singh
had started from their village in order to reach Bhiwani to
attend court hearing in the appeal. When they were at the
outskirts of the village, the six accused emerged from behind
stones. Randhir (A-2) and Kartar (A-5) were armed with pharsis
and rest of them with lathis. They surrounded the deceased and
PW-7 saying In Ko Aaj Yahin zamin dai do aur khata kar do.
Looking to the danger, the deceased and PW-7 ran into the nearby
house of Nanak, the door of which was open. The accused chased
them. PW-7 ran ahead deeper into the house and reached a point
where there is a Neem tree and which is at higher level. He
looked back and saw Daya Nand had scaled a dauli (a small wall).
He was overtaken by Randhir who had also jumped over the dauli.
Randhir gave a pharsi blow on Daya Nand. At that stage, accused
Partap reached there and he also gave three lathi blows to Daya
Nand in the back. Sohan, Ramanand and Rajinder also arrived
there and each of them gave one lathi blow to Daya Nand. Sumer,
son of Nanak, the owner of the house having come out of the house
also saw this occurrence. After dealing with Daya Nand, the
accused proceeded to chase PW-7 but he ran away to his house.
After reaching home, he narrated, as to what happened, to his
brother Dani Ram and cousin Tara Chand who were sitting at the
entrance of the house and brought them to the spot of occurrence.
They found Daya Nand lying unconscious and the accused had run
away. They took Daya Nand to his house. From there, they
brought him to Primary Health Centre at Gopi at about 8.00 or
8.15 A.M.

According to PW-1, Dr. Dilbagh Singh, Incharge of the Gopi
Primary Health Centre, Daya Nand was brought to hospital at 8.30
A.M. His condition was serious as he was having multiple
injuries; after giving emergency treatment, referred him to
General Hospital, Bhiwani giving a ruqa to Police Station,
Badhra.

PW-2, Dr. R.N. Swami, attended Daya Nand at General
Hospital, Bhiwani. He sent ruqa at 10.10 A.M. to the Incharge,
Police Post, General Hospital, Bhiwani and proceeded with medical
examination. He found 12 injuries on Daya Nand. In response to
the ruqa sent by PW-2, Sub-Inspector, Udey Chand (PW-9),
Incharge, Police Post, General Hospital, Bhiwani reached the
emergency ward at 10.20 A.M. to find out if Daya Nand was in a
fit condition to make statement. The doctor gave opinion that
Daya Nand was unfit to make a statement. PW-9 has stated that a
man who was present by the side of Daya Nand told him that PW-7
had gone to bring medicine. PW-9, Udey Chand could meet PW-7 at
about 12.15 P.M. and recorded his statement as per Ex. PK/1 which
constituted F.I.R. in the case. With his endorsement PK/2, PW-9
gave ruqa Ex. P.C. along with his application made to the doctor
and copy of M.L.R. with a direction to carry to the Police
Station Badhra for the registration of the case.

Daya Nand died at 12.10 A.M. on 12.2.1985. PW-2, Dr. Gupta
intimated this fact to the Incharge, Police Post of the Hospital,
Bhiwani. The dead body was subjected to post-mortem examination
by Dr. R.G. Jindal (PW-4). The accused Randhir surrendered to
the court on 14.2.1985. The remaining accused were also arrested
on 15.2.1985. Thereafter recoveries were made at the instance of
the accused as per the details given in the judgment of the
Sessions Judge in paragraphs 20-27.

In support of the case, the prosecution examined 12
witnesses including PW-6 Amir Chand, Draftsman and PW-10 Deep
Chand, the Headmaster of Government High School, Dalawas.

The learned Sessions Judge relying on the evidence of sole
eyewitness PW-7 Hoshiar Singh convicted all the accused for the
offences under Sections 148 and 302 read with Section 149 of IPC.

It is unfortunate that the approach and appreciation
adopted by the Sessions Court was manifestly erroneous and
contrary to the well-settled principles of law. It may be said
that the approach of the learned Sessions Judge has been one-
sided. Lapses, omissions and contradictions in the prosecution
case were either condoned or lightly brushed aside or were
supported without any justification against the probabilities
appearing in the case which is clearly demonstrated hereinbelow.
It should be remembered that PW-7 Hoshiar Singh is the cousin
of the deceased Daya Nand. Admittedly, there was civil
litigation between the accused on the one side and deceased Daya
Nand and himself and others on the other side. The alleged
motive for the commission of offence is the very civil
litigation. The suit for permanent injunction in respect of land
in dispute was filed on 11.3.1982 by accused Sohan in which
temporary injunction order was granted against the deceased and
PW-7 and others which was confirmed later after hearing both the
parties. Thereafter the suit itself was decreed on 20.12.1983.
The deceased Daya Nand and PW-7 had filed appeal against the
decree in the Court of Addl. District Judge, Bhiwani on
23.1.1984. Pw-7 had however admitted that accused Sohan was in
exclusive possession of the said land. These facts are
established by documents Ex. DA/1 to DA/10. PW-7 in the F.I.R.
as well as before the curt had claimed that civil suit with
regard to the joint land was instituted by him and Daya Nand
against other co-sharers Sohan and others and that the same was
dismissed. This was incorrect and belied by Ex. DA/1 to DA/10.
When it was pointed out that PW-7 was not trustworthy as he had
made false statement against the records being himself party to
the proceedings, the learned Sessions Judge in para 35 of the
judgment, dealing with the same has stated thus :-

The criticism is factually correct but it does
not make any dent in the prosecution case.

Hoshiar Singh is an illiterate witness and is
not expected to know the background details of
litigation. Suffice it to say that it is a
common case of the parties that there was
litigation over the land. In other words,
there was bad blood between them and that is
enough for our purpose.

According to the learned Sessions Judge, it was enough for
the purpose of establishing motive of the accused to commit the
crime but failed to objectively consider why it was not enough to
disbelieve the evidence of PW-7 in view of the fact that he was
both interested and partisan that too in the absence of any
corroboration.

As to the contention that PW-7, Hoshiar Singh, was most
unlikely to accompany the deceased to Bhiwani on the date of
occurrence on the ground that looking to Ex. DA/5 to DA/10, the
order passed in the appeal, the presence of PW-7 was not there
and in the appeal his presence was not required on 11.2.1985, the
learned Sessions Judge observed that there was no bar for PW-7
from attending the court and that he was illiterate person and
did not know what proceedings were to take place. That learned
Sessions Judge added on his own Even otherwise also, the
parties do attend even on dates which are not for final
hearing. On behalf of the accused, efforts were made to show
that neither the deceased Daya Nand nor PW-7 Hoshiar Singh on the
date of occurrence at the time mentioned were going from their
village to Bhiwani, referring to various circumstances, one of
the circumstance being neither any money nor any documents were
recovered from the dead body of Daya Nand. The learned Sessions
Judge has strongly observed thus :-

It is not disputed that injured Daya Nand was
first carried home. If he had any documents or
money on his person, the same might have been
removed by the members of his family. There
was no point in sending a dying man to the
Hospital with money or documents in his pocket.
The wiser course would be to remove them.

The case of the accused that it was a blind murder, must
have taken place at night time was brushed aside without any
deeper consideration.

When it was found that there was conflict in the evidence
of PWs 6 & 7, the learned Sessions Judge preferred to believe PW-
7, a partisan, rather than the PW-6, the Draftsman, a Government
servant. The learned Sessions Judge has dubbed him as a dishonest
witness. If that be so, we fail to understand as to why the
prosecution did not treat him as hostile.

When the contradiction in the evidence of PW-11 Sub
Inspector Krishan Lal was pointed out with reference to sending
of ruqa of the doctor along with the M.L.R., the learned Sessions
Judge has stated thus:-

This discrepancy is there, but it is wholly
immaterial. It appears that the memory of the
S.I. was failing him on this point.

Similarly when it was contended that there was delay in the
F.I.R., the learned Sessions Judge has stated that Daya Nand was
in a serious condition; everybody including PW-7 were interested
to save life of the deceased although the Sub Inspector of Police
went to hospital at 10.20 AM, he could not meet PW-7 till 12.20.
It is stated that PW-7 had gone to buy medicines and as such he
was not available. The presence of PW-7 in the hospital was not
spoken to by the doctor on duty and even his name was not
mentioned as a person accompanying the deceased to the hospital.
With all this, the learned Sessions Judge says that the delay in
F.I.R. is never vital per se when the evidence otherwise inspires
confidence. It is strange as to how such evidence of PW-7 alone
without any corroboration could be said to inspire confidence.

Again when contradiction in the statement of ASI Kaura Ram
was shown with regard to leaving police station for starting
investigation, the learned Sessions Judge has stated thus:-

Surely, the statement of A.S.I. Kaura Ram does
not tally with the record. But for whatever
reason this lacuna may be, it does not go to
the root of the matter even if we exclude the
presence of Kaura Ram from the scene on
11.2.1985, the prosecution case will remain
unaffected.

The learned Sessions Judge did not appreciate the evidence
objectively. He failed to see that all the male members 3of the
two families of the accused were involved because of enmity on
account of land dispute. The evidence of PW-7, the sole eye-
witness without any corroboration ought to have been scrutinized
with great caution who has given the graphic details as to the
injuries caused by each accused when he himself was frightened
and was running away.

The trial court partly believed the recovery of weapons and
clothes but the High Court totally disbelieved the recovery.
This was also strong circumstance against the prosecution.

Reacting to the submission that non-examination of another
eye-witness Sumer the learned Sessions Judge has stated thus :-

But Sumer was given up as having been won over
by the accused. And the phenomenon of such
winning over is not unknown to the courts. In
any event, Sumers non-examination does not
wash away the remaining evidence.

This approach of the learned Sessions Judge is unusual and
strange. The learned Sessions Judge failed to objectively assess
and analyse the evidence and circumstances consistent with
crystalised judicial view and that it was unsafe to act on the
sole evidence of PW-7 in the circumstances.
An accused is presumed to be innocent until he is found
guilty. The burden of proof, that he is guilty, is on the
prosecution and that the prosecution has to establish its case
beyond all reasonable doubts. In other words, the innocence of
an accused can be dispelled by the prosecution only on
establishing his guilt beyond all reasonable doubts on the basis
of evidence. In this case, if only the Sessions Judge had
reminded himself of the above-mentioned basic or fundamental
principles of criminal jurisprudence, direction of his approach
and course of his appreciation of evidence would have been
different and thereby perversity in appreciation of evidence
could have been avoided.

It is equally unfortunate that the High court did not
seriously and objectively re-appreciate the evidence placed on
record as the first appellate court, but has simply appended its
seal of approval to the judgment of the Sessions court. When it
was pointed out that PW-7 was not a truthful witness inasmuch as
he gave false statement with regard to the very litigation
between the parties, the High Court observed that whatever may be
the situation that a case was fixed in the appeal on 11.2.1985
and to attend the proceedings in the appellate court, someone had
to go to the court. We fail to understand as to how someone had
to essentially go to attend the court in appeal. The High Court
proceeded to say that PW-7 had no reason to falsely implicate the
accused 4 to 6 unless they were there. The observation of the
High Court is that :-

The manner in which Daya Nand deceased and
Hoshiar Singh PW-7 were chased also shows that
the accused were sufficient in number. The
number and type of injuries on the dead body
of Daya Nand deceased also suggests that the
number of assailants was quite big. These
circumstances lend assurance to the truthful
nature of this version.

We are unable to understand as to how chasing deceased Daya
Nand and PW-7 showed that the accused were sufficient in numbers
and similarly how the number and types of injuries on the
deceased suggested that the number of assailants was quite big.
If this is accepted, the number of accused could be more than
six. Commenting on the non-examination of another eye-witness
Sumer, the High Court has stated thus :-

As the land dispute between Daya Nand and his
collateral on the one side and Sohan Lal
accused on the other had resulted into this
incident, Sumer, his father and other people in
the village may not have liked siding with
anybody. These days it is commonly seen that
in such disputes, people normally abstain
themselves from involving into the affairs of
others by taking stand in favour or against any
of the parties.

In the absence of any explanation by the prosecution as to
the non-examination of the Sumer, this sort of conjecture by the
High Court was neither warranted nor sustainable. The High Court
has made further guess work by stating that:-

There may be other reasons for Sumer to stay
away from the witness box which may not be
envisaged by us.

In regard to non-examination of Dani Ram, the brother of
PW-7 and Tara Chand, the cousin of PW-7, the High Court has
stated that their appearance or non-appearance could hardly
improve matters in favour of the accused.

It was pointed out that when Daya Nand was taken to Bhiwani
hospital, Tara Chand was with him at the time of his medical
examination and if PW-7 was with the deceased at that time, his
presence would have been recorded by the doctor. The doctor
stated that Tara Chand was there. PW-7 himself had stated that
Tara Chand had accompanied him when he took Daya Nand, the
deceased, to the hospital. This was another reason why Tara
Chand should have been examined. Non-mentioning the name of PW-7
as accompanying the deceased to the hospital also raises the
doubt as to his presence in the hospital.

The High Court has disbelieved the recovery of the clothes
and weapons of the offences. With all this, the High Court
affirms the judgment of conviction of the Sessions Court acting
on the evidence of PW-7 alone.

We may add that the prosecution case entirely rested on the
sole evidence of PW-7, who was not only interested being the
cousin of the deceased and was inimical too to the accused in
view of the civil litigation referred to above. It was unsafe to
act on his evidence without any corroboration. Although there
were material witnesses available to corroborate, their non-
examination or withholding their evidence was a serious lacuna in
the prosecution case. Non-examination of another eye-witness,
Sumer, whose name was mentioned in the FIR and who had witnessed
the occurrence according to PW-7, was also fatal. PW-7 stated
that he himself, his brother Dani Ram and his cousin Tara Chand
went to the place of occurrence and lifted Daya Nand to his house
and their clothes got bloodstained. The bloodstained clothes
were neither produced nor seized. Failure to do so raises a
serious doubt as to the version of PW-7. Dani Ram and Tara Chand
were also not examined. PW-7 stated that immediately after the
occurrence he ran towards his house; in front of his house Dani
Ram and Tara Chand were sitting, he informed them and narrated
about the incident and thereafter all three of them went to the
place of occurrence and brought the deceased Daya Nand to his
house. If only Dani Ram and Tara Chand were examined they would
have corroborated the evidence of PW-7. This again shakes the
prosecution case. The High Court disbelieved the recovery of
both weapons and clothes. In all cases recovery by itself may
not be material. But in this case in the absence of
corroboration to the evidence of PW-7, the recovery aspect
assumed importance. The civil litigation was started in 1982;
the suit was decreed in favour of Sohan, accused no. 1 in 1993;
the appeal filed by the deceased and PW-7 was pending on the date
of occurrence; there was no immediate provocation or cause for
committing the offence on 11.2.1985.

The credibility of PW-7 and truthfulness of his evidence in
the circumstances needed to be scrutinized with great care and
caution. His evidence does not inspire confidence for the
reasons that (a) though he was a party to the civil suit as a
defendant along with deceased Daya Nand, he falsely stated that
it was deceased Daya Nand who filed the suit, when as a matter of
fact it was the accused no. 1 Sohan, who had filed the suit. (b)
He had made a wrong statement as to the possession of the
disputed land but he was forced to admit the possession of
accused Sohan in the cross-examination. (c) He stated, When the
Draftsman came to the spot I was not there. PW-6, the
draftsman clearly stated in his evidence that he prepared the
site plan Exh. PN on the pointing out of PW-7 and Sumer (not
examined by the prosecution). (d) He stated, We had picked up
Daya Nand from the spot on our hands. Our clothes had got blood
stained in this process. He further stated, I had not shown my
blood stained clothes to the police. I had changed my clothes
before leaving for Bhiwani.

In the light of what is stated above, after deeper
consideration, detailed examination of evidence and probabilities
of the case, in the light of the arguments advanced by the
learned counsel on either side, we have no hesitation in holding
that the Sessions Court as well as the High Court have
concurrently and manifestly erred in convicting and sentencing
the accused. In a case like this it is our duty to interfere
with the impugned judgment and order to do substantial justice.
Under these circumstances and in view of the discussion
made above, we have no hesitation in holding that the prosecution
has failed to establish the guilt of the accused beyond
reasonable doubt. Hence we set aside the judgment and order of
the Sessions Court as affirmed by the High Court. Accordingly,
these appeals are allowed and the accused are acquitted and their
bail bonds shall stand discharged.

……………….J.

( U.C. BANERJEE )

……………….J.

( SHIVARAJ V. PATIL)

New Delhi
Dated: 02.03.2001

14

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