{"id":249814,"date":"2001-02-28T00:00:00","date_gmt":"2001-02-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-sunil-kumar-sarkar-on-28-february-2001"},"modified":"2015-12-04T02:19:42","modified_gmt":"2015-12-03T20:49:42","slug":"union-of-india-ors-vs-sunil-kumar-sarkar-on-28-february-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-sunil-kumar-sarkar-on-28-february-2001","title":{"rendered":"Union Of India & Ors vs Sunil Kumar Sarkar on 28 February, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India & Ors vs Sunil Kumar Sarkar on 28 February, 2001<\/div>\n
Author: S Hegde<\/div>\n
Bench: S.P.Bharucha, N.S.Hegde, Y.K.Sabharwal<\/div>\n
           CASE NO.:\nAppeal (civil) 7769  of  1995\n\n\n\nPETITIONER:\nUNION OF INDIA & ORS.\n\n\tVs.\n\nRESPONDENT:\nSUNIL KUMAR SARKAR\n\nDATE OF JUDGMENT:\t28\/02\/2001\n\nBENCH:\nS.P.Bharucha, N.S.Hegde, Y.K.Sabharwal\n\n\n\n\nJUDGMENT:\n<\/pre>\n
L…..I………T…….T…….T…….T…….T…….T..J<\/p>\n
      SANTOSH HEGDE, J.\n<\/p>\n
      A\t General Court Martial (GCM) under the provisions of
\nthe  Army  Act<\/a>,\t 1950 was initiated against  the  respondent
\nherein for certain allegations of defrauding the Border Road
\nOrganisation  (the  Organisation) in which the\trespondent
\nwas   working  as  a   Superintendent,\tBuildings  &  Roads,
\nGrade-II.  On the conclusion of the said GCM proceedings, he
\nwas  found guilty of some of the charges framed against\t him
\nand  was  sentenced  to\t undergo R.I.  for  one\t year  which
\nsentence  under the Army Act<\/a> was subject to confirmation  by
\nthe  higher  authorities under Chapter XII of the Army\tAct.
\nPursuant to the said sentence, the respondent was taken into
\ncustody\t on  the very day i.e.\t28th July, 1976.   When\t the
\nconviction  and\t sentence  was taken up\t by  the  confirming
\nauthority,   same  was\tremanded  back\t to  the   GCM\t for
\nreconsideration.   On  remand,\tthe   GCM  again  heard\t the
\nrespondents  counsel and modified its earlier order whereby
\nwhile  finding\tthe  respondent\t again\tguilty\treduced\t the
\nearlier\t sentence  of  R.I.   for one year to  that  of\t six
\nmonths.\t  This\torder  was  also  subject  to  confirmation.
\nHowever,  in  view  of the fact that the respondent  who  by
\nvirtue\tof the first order was undergoing the sentence,\t had
\ncompleted  the\tperiod of six months by that time,  the\t GCM
\ndirected  the release of the respondent from custody on 28th
\nJanuary, 1977.\tThe second order of conviction was confirmed
\nby  the authority concerned on 26.3.1977.  In the  meantime,
\nthe  authorities  acting under Rule 19 of the Central  Civil
\nServices  (Classification,  Control and Appeal) Rules,\t1965
\n(for  short  the  Central Rules) with a view  to  initiate
\ndisciplinary  proceedings  issued a show cause notice  dated
\n26.3.1977  calling upon him to show cause why suitable order
\nbe  not\t passed against him.  The respondent  submitted\t his
\nreply  to the said show cause notice.  The authority on\t the
\nconclusion  of the said departmental inquiry under the\tsaid
\nRule dismissed the respondent from service.  The appeals and
\nthe  review  petitions\tfiled  by   the\t respondent  to\t the
\nappropriate authorities against his conviction by the GCM as
\nwell  as  his dismissal under the Central Rules came  to  be
\ndismissed.   The  respondent challenged these orders of\t his
\nconviction under the Army Act<\/a> as well as his dismissal under
\nthe  Rules by way of a writ petition before a learned Single
\nJudge  of  the\tCalcutta High Court who, after\thearing\t the
\nparties,  noticed  certain  defects in the  orders  impugned
\nbefore\thim, hence, allowed the writ petition and issued the
\nfollowing directions:\n<\/p>\n
      The Chief Engineer, Project Sevak is directed to give
\na personal hearing to the petition and after such hearing he
\nshall pass a fresh order either confirming the earlier order
\ndated the 23rd October, 1978, or passing such an order as he
\nmay  deem fit and proper.  The fresh order must contain\t the
\nreasons.  Similarly I direct the Director- General of Border
\nRoads  to  give\t a  personal hearing to\t the  petitioner  in
\nconnection  with  his post-confirmation petition and pass  a
\nfresh  order  either confirming the earlier order dated\t the
\n23rd  March, 1979, or passing a fresh order as he may  think
\nfit and proper.\t The fresh orders must contain the reasons.\n<\/p>\n
      Against the said judgment of the learned Single Judge,
\nnone of the respondents before the learned Single Judge, who
\nare  now appellants before us, preferred any appeal.  Hence,
\nthe  said  order  has  become  final  so  far  as  they\t are
\nconcerned.   The  respondent, however, not being  satisfied,
\npreferred  an  appeal before the Division Bench of the\tsaid
\nHigh  Court  and  the High Court as per its  impugned  order
\nallowed\t the  said  appeal holding that\t the  Court  Martial
\nproceedings   as  well\tas   the  disciplinary\t proceedings
\ninitiated  by the appellants were vitiated by the fact\tthat
\nthe  authorities  had  chosen to keep the  respondent  under
\nsuspension without there being any reason therefor, and that
\nthe  respondent was taken into custody immediately after the
\npronouncement  of  the sentence by the GCM without the\tsaid
\norder  being  confirmed\t as required by the Army  Act<\/a>.\t The
\nDivision Bench also found against the disciplinary authority
\nfor  having  passed the impugned order of  dismissal  solely
\nbased on the finding of the Court Martial proceedings which,
\naccording   to\t the  Division\t Bench,\t showed\t  that\t the
\ndisciplinary  authority had a pre-determined mind.  It\talso
\nobserved  that the findings of the Court Martial proceedings
\nwere  not based on the material on record and amounted to  a
\nperverse  order.   It is against this order of the  Division
\nBench  dated 30.3.1994 that the appellants are before us  in
\nthis appeal.  We have heard learned counsel for the parties,
\nand  perused  the  records.  As noticed above,\tone  of\t the
\ngrounds\t relied\t upon  by  the Division Bench  to  pass\t the
\nimpugned  order\t was  that  the respondent  was\t kept  under
\nsuspension  by\tthe  disciplinary authority  after  the\t GCM
\nproceedings  were  over and while he was still\tin  custody.
\nAccording  to the Division Bench, this was contrary to\tRule
\n10  of\tthe  Central  Rules inasmuch  as  certain  condition
\nprecedent  required under the Rule was not existing when the
\norder  of  suspension was made.\t It seems that the  Division
\nBench  was  of the opinion that once a person is in  custody
\nthe question of keeping him under suspension does not arise.
\nWe  do\tnot  agree with this opinion of the  Division  Bench
\nbecause\t the  Division\tBench  failed  to  notice  that\t the
\nrespondent was due to be released on 27.1.1977 after serving
\nthe  six months R.I.  imposed on him.  After his release in
\nthe normal course, he was entitled to claim reinstatement in
\nservice\t unless\t departmental\tproceedings  were  initiated
\nagainst\t him for the misconduct for which he was  convicted.
\nTherefore,  the\t authority thought it necessary to keep\t the
\nrespondent under suspension, hence, the orders under Rule 10
\nof  the\t Central  Rules were issued keeping  the  respondent
\nunder  suspension.   Rule  10(1)(a)  of\t the  Central  Rules
\nempowers  the  appointing  authority to place  a  Government
\nservant\t under\tsuspension  if an inquiry  is  either  being
\nconducted  against  him or is contemplated against him.\t  In
\nthe  present  case, a disciplinary authority had decided  to
\ninitiate  the disciplinary proceeding against the respondent
\nand  pursuant  to the said decision and in exercise  of\t the
\npower  vested in him by Rule 10(1)(a) of the Central  Rules,
\nthe  respondent\t was kept under suspension.  Therefore,\t the
\nconcerned  authority was well within its statutory power  to
\nkeep  the  respondent under suspension and, in our  opinion,
\nthe  High Court fell in error in finding fault with the said
\ndecision  on  the ground that there was no need to keep\t the
\nrespondent under suspension when he is undergoing a sentence
\nof  imprisonment.   The next finding of the  Division  Bench
\nthat  the  GCM erred in taking the respondent  into  custody
\nimmediately  after it imposed the sentence without the\tsaid
\norder of sentence being confirmed by the higher authority is
\nalso  contrary\tto the provisions of the Army Act<\/a>.   Section
\n167<\/a> of the said Act mandates that when a person is sentenced
\nby  a  Court  Martial  his sentence  shall  be\treckoned  to
\ncommence  on the day on which the original proceedings\twere
\nsigned\tby  the Presiding Officer whether such\tsentence  is
\nrevised\t or  not.   In the instant case, the  Court  Martial
\npronounced  the sentence on 28.7.1976 and the respondent was
\ntaken  into custody on the same day which was in  accordance
\nwith  Section  167<\/a> of the Army Act.  The Division Bench,  in
\nour  opinion, did not notice this provision of the Army\t Act<\/a>
\nwhen  it found fault with the GCM for taking the  respondent
\ninto custody before the sentence imposed by it was confirmed
\nby  the confirming authority.  The Division Bench also found
\nfault with the order of dismissal passed by the disciplinary
\nauthority  on  the ground that the same was solely based  on
\nthe  conviction\t suffered  by the respondent  in  the  Court
\nMartial\t proceeding.  The court in this regard held that the
\ndisciplinary  authority\t had a pre-determined mind  when  he
\npassed\tthe order of dismissal.\t Here again, in our opinion,
\nthe  Division Bench did not take into consideration Rule  19
\nof  the Central Rules which contemplates that if any penalty
\nis  imposed  on a Government servant on his conviction in  a
\ncriminal  charge,  the disciplinary authority can make\tsuch
\norder  as  it deems fit (dismissal from service is one\tsuch
\norder contemplated under Rule 19) on initiating disciplinary
\nproceedings  and  after\t giving the  delinquent\t officer  an
\nopportunity  of\t making\t a  representation  on\tthe  penalty
\nproposed  to be imposed.  As a matter of fact, this type  of
\ndisciplinary  procedure is contemplated in the\tConstitution
\nitself\tas  could be seen in Article 311(2)(a).<\/a>\t Rule 19  of
\nthe Central Rules is in conformity with the above provisions
\nof  the\t Constitution.\t This,\tas  we\tsee,  is  a  summary
\nprocedure  provided  to take disciplinary action  against  a
\nGovernment  servant  who is already convicted in a  criminal
\nproceeding.   The  very\t foundation of\timposing  punishment
\nunder  Rule 19 is that there should be a prior conviction on
\na  criminal  charge.   Therefore, the question of  having  a
\npre-determined\tmind does not arise in such cases.  All that
\na  disciplinary authority is expected to do under Rule 19 is
\nto  be\tsatisfied  that\t the   officer\tconcerned  has\tbeen
\nconvicted  of  a criminal charge and has been given  a\tshow
\ncause  notice  and reply to such show cause notice, if\tany,
\nshould\tbe properly considered before making any order under
\nthis  Rule.   Of  course, it will have to bear in  mind\t the
\ngravity of the conviction suffered by the Government servant
\nin  the criminal proceedings before passing any order  under
\nRule  19 to maintain the proportionality of punishment.\t  In
\nthe  instant  case, the disciplinary authority has  followed
\nthe  procedure laid down in Rule 19, hence, we cannot  agree
\nwith the Division Bench that the said disciplinary authority
\nhad  any  pre-determined  mind when it passed the  order  of
\ndismissal.   The Division Bench next came to the  conclusion
\nthat  the  finding  arrived at by the GCM is  perverse.\t  In
\nregard\tto this finding, this is what the court has observed
\nin its judgment:\n<\/p>\n
      It  also appear to us that the decision arrived at by
\nthe G.C.M.  was arrived at without consideration of evidence
\nand as such the same are perverse.  There has been no proper
\nconsideration  of  relevant  facts   and  materials  and  no
\nreasonable   man   acting   bona   fide\t and   with   proper
\nconsideration  could  have  come to  the  impugned  finding,
\nrendering  such\t decision\/conviction   and  all\t proceedings
\nsubsequent thereto to be void ab initio.\n<\/p>\n
      A\t perusal of the judgment impugned clearly shows that
\nits  finding  that  the decision of the GCM was\t arrived  at
\nwithout consideration of evidence is not factually supported
\nby any material and is only an ipse dixit of the court.\t The
\nDivision Bench has not pointed out what is the evidence that
\nhas  not been considered by the GCM and how its findings are
\nperverse.   In\tthe  absence of these basic  facts,  we\t are
\nunable to agree with the Division Bench that the findings of
\nthe  GCM on facts is either not based on material on  record
\nor  is\tperverse.  Before concluding we must point out\tthat
\nduring the course of arguments, a doubt was raised as to the
\nmaintainability\t of  the  concurrent  proceedings  initiated
\nagainst\t the respondent by the authorities.  The  respondent
\nin  this case has been punished for the same misconduct both
\nunder  the Army Act<\/a> as also under the Central Rules.  Hence,
\na  question arises whether this would tantamount to  double
\njeopardy  and  is  in  violation  of  Article  20<\/a>  of\tthe
\nConstitution  of  India.   Having considered  the  arguments
\naddressed  in this behalf, we are of the opinion that so far
\nas  the concurrent proceedings initiated by the Organisation
\nagainst\t the  respondent  both under the Army  Act<\/a>  and\t the
\nCentral\t Rules\tare  concerned,\t they  are  unexceptionable.
\nThese two proceedings operate in two different fields though
\nthe crime or the misconduct might arise out of the same act.
\nThe  Court Martial proceedings deal with the penal aspect of
\nthe misconduct while the proceedings under the Central Rules
\ndeal  with  the disciplinary aspect of the misconduct.\t The
\ntwo  proceedings  do  not  overlap.  As a  matter  of  fact,
\nNotification  No.SRO-329  dated 23.9.1960 issued  under\t the
\nCentral\t Rules and under sub-sections (1) and (4) of Section
\n4<\/a>  of  the  Army  Act makes this position  clear.   By\tthis
\nnotification,  the punishments that could be meted out under
\nthe  Central Rules have been taken out of the purview of the
\nCourt  Martial\tproceedings under the Army Act<\/a>.\t We  further
\nfind  support for this view of ours in the judgment of\tthis
\nCourt  in R.  Viswan & Ors.  v.\t Union of India & Ors<\/a>.\t(AIR
\n1983  SC  658).\t As noticed above, in view of the fact\tthat
\nthe  appellants have not challenged the directions issued by
\nthe learned Single Judge in the writ appeal, the same remain
\nundisturbed  by this judgment while we allow this appeal and
\nquash the judgment of the Division Bench impugned before us.
\nNo order as to costs.<\/p>\n
\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n      1<\/span>\n\n      12<\/span>\nIN THE SUPREME COURT OF INDIA\n\nCRIMINAL APPELLATE JURISDICTION\n\n\nCRIMINAL APPEAL NO.821\tOF 2000\n\nSuresh and anr.\t\t\t\t\t\tAppellant\n\n:versus:\n\nState of U.P.\t\t\t\t\t\t\tRespondent\n\nWITH\n\nCRIMINAL APPEAL NO. 160\t OF 2001\n\nState of U.P.\t\t\t\t\t\t\t Appellant\n\n:versus:\n\nPavitri Devi\t\t\t\t\t\t\t Respondent\n\n\n\n\n\n\n\n\t\t\t\tJ U D G M E N T\nTHOMAS, J.\n<\/pre>\n
\tSection 34<\/a> of the Indian Penal Code is a very commonly
\ninvoked provision in criminal cases. With a plethora of
\njudicial decisions rendered on the subject the contours of
\nits ambit seem well neigh delineated. Nonetheless, when
\nthese appeals were heard a two-judge Bench felt the need to
\nmake a re-look at the provision as to whether and if so to
\nwhat extent it can be invoked as an aid in this case.  Hence
\nthese appeals were heard by a larger Bench.
\n\tIn one of the appeals A-1 Suresh and his brother-in-law
\nA-2 Ramji are fighting their last chance to get extricated
\nfrom the death penalty imposed on them by a Sessions Court
\nwhich was confirmed by a Division Bench of the High Court.
\nIn the other appeal Pavitri Devi, the wife of A-1 Suresh
\n(also sister of A-2 Ramji) is struggling to sustain the
\nacquittal secured by her from the High Court in reversal of
\nthe conviction for murder ordered by the Sessions Court with
\nthe aid of Section 34<\/a> IPC.\n<\/p>\n
\tOn the night of 5.10.1996 when Ramesh (brother of
\nappellant Suresh) and his wife and children went to bed as
\nusual they would have had no foreboding that it was going to
\nbe the last night they were sleeping on this terrestrial
\nterrain.  But after they, in their sleep, crossed the
\nmidnight line and when the half crescent moon appeared with
\nits waned glow above their house the night turned red by the
\nbloodiest killing spree befallen the entire family. The
\nmotely population of that small house were whacked to pieces
\nby armed assailants, leaving none, but a single tiny tot,
\nalive.\tThe sole survivor of the gory carnage could have
\nseen what happened inside his sweet home only in the light
\nwhich itself turned carmine.  He narrated the tale before
\nthe Sessions Court with the visible scars of the wounds he
\nsustained on his person.\n<\/p>\n
\tThat infant witness (PW-3 Jitendra) told the trial
\ncourt that he saw his uncle (A-1 Suresh) in the company of
\nhis brother-in-law (A-2 Ramji) acting like demons, cutting
\nthe sleeping children with axe and chopper.  He also said
\nthat his aunt (A-3 Pavitri Devi) clutched the tuft of his
\nmothers hair and yelled like a demoness in thirst for the
\nblood of the entire family.\n<\/p>\n
\tLalji (PW-1), the uncle of the deceased Ramesh (who is
\nuncle of A-1 Suresh also) and Amar Singh (PW-2) a neighbour
\ngave evidence supporting the version of PW-3 Jitendra. But
\nthe said two witnesses did not attribute any overt act to
\nPavitri Devi except saying that she too was present near the
\nscene of occurrence.  The house of the accused was situated
\nnot far away from the scene of occurrence but across the
\nroad which abuts the house of the deceased.\n<\/p>\n
\tThe doctor (PW5-C.M. Tiwari) who conducted the autopsy
\non the dead bodies of all the deceased described the
\nhorrifying picture of the mauled bodies.  The youngest of
\nthe victims was a one year old child whose skull was cut
\ninto two and the brain was torn asunder.  The next was a
\nthree year old male child who was killed with his neck axed
\nand the spinal cord, trachea and the larynx were snipped.
\nThe next in line was PW-3 Jitendra – a seven year old child.
\n(His injuries can be separately stated).  His immediate next
\nelder was Monisha  a nine year old female child, who too
\nwas axed on the neck, mouth and chest with her spinal cord
\ncut into two.\n<\/p>\n
\tThe mother of those little children Ganga Devi was
\ninflicted with six injuries which resulted in her skull
\nbeing broken into pieces.  The last was Ramesh\tthe bread
\nwinner of the family, who was the father of the children.
\nFour wounds were inflicted on him.  All of them were on neck
\nand above that. The injuries on Ramesh, when put together,
\nhad neared just short of decapitation.\n<\/p>\n
\tPW-3 Jitendra had three incised wounds on the scapular
\nregion, but the doctor who attended on him (PW-6 S.K. Verma)
\ndid not probe into the depth of one of them, presumably
\nbecause of the fear that he might require an immediate
\nsurgical intervention.\tHowever, he was not destined to die
\nand hence the injuries inflicted on him did not turn fatal.\n<\/p>\n
\tThe motive for the above dastardly massacre was the
\ngreed for a bit of land lying adjacent to the house compound
\nof the deceased which A-1 Suresh claimed to be his. But
\ndeceased Ramesh clung to that land and it resulted in
\nburgeoning animosity in the mind of Suresh which eventually
\ngrew alarmingly wild.\n<\/p>\n
\tThe evidence of PW-1 Lalji and PW-2 Amar Singh was
\nconsidered by the Session Court in the light of various
\ncontentions raised by the counsel for the accused.  The
\ntrial judge found the said evidence reliable.  The Division
\nBench of the High Court considered the said evidence over
\nagain and they did not see any reason to dissent from the
\nfinding made by the trial court.  The evidence of PW-3
\nJitendra, the sole survivor of the carnage, was evaluated
\nwith greater care as he was an infant of seven years.
\nLearned Judges of the Division Bench of the High Court
\naccepted the evidence of PW-3 only to the extent it secured
\ncorroboration from the testimony of PWs.1 and 2.\n<\/p>\n
\tThough Mr. K.B. Sinha, learned senior counsel made an
\nendeavour to make some tears into the fabric of the
\ntestimony of PWs.1 and 2  he failed to satisfy us that there
\nis any infirmity in the findings recorded by the two courts
\nregarding the reliability of the evidence of those two
\nwitnesses. As the learned senior counsel found it difficult
\nto turn the table regarding the evidence against the accused
\nwhich is formidable as well as trustworthy, he focussed on
\ntwo aspects.  First is that acquittal of Pavitri Devi does
\nnot warrant interference from this Court. Second is that
\nthis is not a case belonging to the category which compels
\nthe court to award death penalty to the two appellants,
\nSuresh and Ramji.\n<\/p>\n
\tWe will now deal with the role played by Pavitri Devi
\nto see whether the court can interfere with the acquittal
\norder passed in her favour by the High Court.  PW-3 said
\nthat while he was sleeping the blood gushed out of the
\nwounds sustained by his father reached his mouth and when he
\nwoke up he saw the incident.  According to him, Pavitri Devi
\ncaught hold his mothers hair and pulled it up, thereafter
\nshe went outside and exhorted that everybody should be
\nkilled.\t But PWs.1 and 2 did not support the aforesaid
\nversion pertaining to Pavitri Devi.  According to them, when
\nthey reached the scene of occurrence Pavitri Devi was
\nstanding in front of the house of the deceased while the
\nother two were inside the house engaged in the acts of
\ninflicting blows on the victims.\n<\/p>\n
\tThe position which prosecution succeeded in
\nestablishing against A-3 Pavitri Devi is that she was also
\npresent at the scene of occurrence. Learned counsel for the
\nState contended that such presence was in furtherance of the
\ncommon intention of the three accused to commit the murders
\nand hence she can as well be convicted for the murders under
\nSection 302<\/a> IPC with the aid of Section 34<\/a> IPC.\t Mr. K.B.
\nSinha, learned counsel contended that if Section 34<\/a> IPC is
\nto be invoked as against Pavitri Devi the prosecution should
\nhave established that she had done some overt act in
\nfurtherance of the common intention.\n<\/p>\n
\tWe heard arguments at length on the ambit of Section 34<\/a>
\nIPC.  We have to consider whether the accused who is sought
\nto be convicted with the aid of that Section, should have
\ndone some act, even assuming that the said accused also
\nshared the common intention with the other accused.\n<\/p>\n
\tSection 34<\/a> reads thus:\n<\/p>\n
Acts done by several persons in furtherance
\nof common intention.-  When a criminal act
\nis done by several persons in furtherance of
\nthe common intention of all, each of such
\npersons is liable for that act in the same
\nmanner as if it were done by him alone.\n<\/p>\n
\tAs the section speaks of doing a criminal act by
\nseveral persons we have to look at Section 33<\/a> IPC which
\ndefines the act.  As per it, the word act denotes as
\nwell a series of acts as a single act. This means a criminal
\nact can be a single act or it can be the conglomeration of a
\nseries of acts. How can a criminal act be done by several
\npersons?\n<\/p>\n
\tIn this context a reference to Section 35<\/a>, 37<\/a> and 38<\/a> of
\nIPC, in juxtaposition with Section 34<\/a>, is of advantage.
\nThose four provisions can be said to belong to one cognate
\ngroup wherein different positions when more than one person
\nparticipating in the commission of one criminal act are
\nadumbrated. Section 35<\/a> says that when an act is done by
\nseveral persons each of such persons who joins in the act
\nwith mens rea is liable for the act in the same manner as
\nif the act were done by him alone with that knowledge or
\nintention. The section differs from section 34<\/a> only
\nregarding one postulate.  In the place of common intention
\nof all such persons (in furtherance of which the criminal
\nact is done), as is required in Section 34<\/a>, it is enough
\nthat each participant who joins others in doing the criminal
\nact, has the required mens rea.\n<\/p>\n
\tSection 37<\/a> deals with the commission of an offence by
\nmeans of several acts.\tThe section renders any one who
\nintentionally cooperates in the commission of that offence
\nby doing any one of those acts to be liable for that
\noffence. Section 38<\/a> also shows another facet of one criminal
\nact being done by several persons without connecting the
\ncommon bond i.e. in furtherance of the common intention of
\nall. In such a case they would be guilty of different
\noffence or offences but not for the same offence.  Among the
\nabove four provisions the common denominator is the
\nparticipation of several persons (more than one person) in
\nthe commission of a criminal act.  The special feature of
\nSection 34<\/a> is only that such participation by several
\npersons should be  in furtherance of the common intention
\nof all.\n<\/p>\n
\tHence, under Section 34<\/a> one criminal act, composed of
\nmore than one act, can be committed by more than one persons
\nand if such commission is in furtherance of the common
\nintention of all of them, each would be liable for the
\ncriminal act so committed.\n<\/p>\n
\tTo understand the section better it is useful to recast
\nit in a different form by way of an illustration. This would
\nhighlight the difference when several persons do not
\nparticipate in the crime committed by only one person even
\nthough there was common intention of all the several
\npersons.  Suppose a section was drafted like this: When a
\ncriminal act is done by one person in furtherance of the
\ncommon intention of several persons each of such several
\npersons is liable for that act in the same manner as if it
\nwere done by all such persons.\n<\/p>\n
\tObviously Section 34<\/a> is not meant to cover a situation
\nwhich may fall within the fictitiously concocted section
\ncaricatured above. In that concocted provision the co-
\naccused need not do anything because the act done by the
\nprincipal accused would nail the co-accused also on the
\nground that such act was done by that single person in
\nfurtherance of the common intention of all the several
\npersons.  But Section 34<\/a> is intended to meet a situation
\nwherein all the co-accused have also done something to
\nconstitute the commission of a criminal act.\n<\/p>\n
Even the concept of presence of the co-accused at the
\nscene is not a necessary requirement to attract Section 34<\/a>,
\ne.g. the co-accused can remain a little away and supply
\nweapons to the participating accused either by throwing or
\nby catapulting them so that the participating accused can
\ninflict injuries on the targeted person.  Another
\nillustration, with advancement of electronic equipment can
\nbe etched like this: One of such persons in furtherance of
\nthe common intention, overseeing the actions from a distance
\nthrough binoculars can give instructions to the other
\naccused through mobile phones as to how effectively the
\ncommon intention can be implemented.  We do not find any
\nreason why Section 34<\/a> cannot apply in the case of those two
\npersons indicated in the illustrations.\n<\/p>\n
\tThus to attract Section 34<\/a> IPC two postulates are
\nindispensable. (1) The criminal act (consisting of a series
\nof acts) should have been done, not by one person, but more
\nthan one person. (2) Doing of every such individual act
\ncumulatively resulting in the commission of criminal offence
\nshould have been in furtherance of the common intention of
\nall such persons.\n<\/p>\n
\tLooking at the first postulate pointed out above, the
\naccused who is to be fastened with liability on the strength
\nof Section 34<\/a> IPC should have done some act which has nexus
\nwith the offence.  Such act need not be very substantial, it
\nis enough that the act is only for guarding the scene for
\nfacilitating the crime.\t The act need not necessarily be
\novert, even if it is only a covert act it is enough,
\nprovided such a covert act is proved to have been done by
\nthe co-accused in furtherance of the common intention.\t Even
\nan omission can, in certain circumstances, amount to an act.
\nThis is the purport of Section 32<\/a> IPC.\tSo the act mentioned
\nin Section 34<\/a> IPC need not be an overt act, even an illegal
\nomission to do a certain act in a certain situation can
\namount to an act, e.g. a co-accused, standing near the
\nvictim face to face saw an armed assailant nearing the
\nvictim\tfrom behind with a weapon to inflict a blow. The co-
\naccused, who could have alerted the victim to move away to
\nescape from the onslaught deliberately refrained from doing
\nso with the idea that the blow should fall on the victim.
\nSuch omission can also be termed as an act in a given
\nsituation.  Hence an act, whether overt or covert, is
\nindispensable to be done by a co-accused to be fastened with
\nthe liability under the section.  But if no such act is done
\nby a person, even if he has common intention with the others
\nfor the accomplishment of the crime, Section 34<\/a> IPC cannot
\nbe invoked for convicting that person. In other words, the
\naccused who only keeps the common intention in his mind, but
\ndoes not do any act at the scene, cannot be convicted with
\nthe aid of Section 34<\/a> IPC.\n<\/p>\n
There may be other provisions in the IPC<\/a> like Section
\n120B<\/a> or Section 109<\/a> which could be invoked then to catch
\nsuch non participating accused. Thus participation in the
\ncrime in furtherance of the common intention is sine qua non
\nfor Section 34<\/a> IPC. Exhortation to other accused, even
\nguarding the scene etc. would amount to participation.\tOf
\ncourse, when the allegation against an accused is that he
\nparticipated in the crime by oral exhortation or by guarding
\nthe scene the court has to evaluate the evidence very
\ncarefully for deciding whether that person had really done
\nany such act.\n<\/p>\n
\tA Division Bench of the Madras High Court has said as
\nearly as in 1923 that evidence of some distinct act by the
\naccused, which can be regarded as part of the criminal act
\nin question, must be required to justify the application of
\nSection 34<\/a> IPC. (vide Aydrooss vs. Emperor, AIR 1923 Madras\n<\/p>\n
187).\n<\/p>\n
\tIn Barendra Kumar Ghosh vs. Emperor<\/a> (AIR 1925 PC 1)
\nthe Judicial Commission after referring to the cognate
\nprovisions adverted to above, held thus:\n<\/p>\n
Read together, these sections are
\nreasonably plain.  S.34 deals with the doing
\nof separate acts, similar or diverse by
\nseveral persons; if all are done in
\nfurtherance of a common intention, each
\nperson is liable for the result of them all,
\nas if he had done them himself, for that
\nact  and the act in the latter part of
\nthe section must include the whole action
\ncovered by a criminal act in the first
\npart, because they refer to it.\n<\/p>\n
\tWe have come across the observations made by another
\nJudicial Commission of the Privy Council of equal strength
\nin Mahbub Shah vs. Emperor<\/a> (AIR 1945 PC 118).  The
\nobservation is that Section 34<\/a> IPC can be invoked if it is
\nshown that the criminal act was done by one of the accused
\nin furtherance of the common intention of all.\tOn the fact
\nsituation their Lordships did not have to consider the other
\ncomponent of the Section. Hence the said observation cannot
\nbe understood to have obviated the necessity of proving that
\nthe criminal act was done by several persons which is a
\ncomponent of Section 34<\/a> IPC.\n<\/p>\n
\tIn Pandurang vs. State of Hyderabad<\/a> [AIR 1955 SC 216]
\nVivian Bose J., speaking for a three-judge bench of this
\nCourt focused on the second component in Section 34<\/a>, IPC<\/a>
\ni.e. in furtherance of the common intention.  There was no
\nneed for the bench to consider about the acts committed by
\nthe accused charged, in order to ascertain whether all the
\naccused committed the criminal act involved therein.  In
\nother words the first postulate was not a question which
\ncame up for consideration in that case.\t Hence the said
\ndecision, cited by both sides for supporting their
\nrespective contentions is not of much use in this case.\n<\/p>\n
\tMr. Pramod Swarup, learned counsel for the State
\ninvited our attention to the decision of this Court in State
\nof U.P. vs. Iftikhar Khan and ors<\/a>. {1973 (1) SCC 512} in
\nwhich it is observed that to attract Section 34<\/a> IPC it is
\nnot necessary that any overt act should have been done by
\nthe co-accused. In that case four accused persons were
\nconvicted on a fact situation that two of them were armed
\nwith pistols and the other two were armed with lathis and
\nall the four together walked in a body towards the deceased
\nand after firing the pistols at the deceased all the four
\ntogether left the scene. The finding of fact in that case
\nwas also the same.  When a plea was made on behalf of those
\ntwo persons who were armed with lathis that they did not do
\nany overt act, this Court made the above observation.  From
\nthe facts of that case it can be said that there was no act
\non behalf of the two lathi-holders although the deceased was
\nkilled with pistols alone.  The criminal act in that case
\nwas done by all the persons in furtherance of the common
\nintention to finish the deceased. Hence the observation made
\nby Vaidialingam, J., in the said case has to be understood
\non the said peculiar facts.\n<\/p>\n
\tIt is difficult to conclude that a person, merely
\nbecause he was present at or near the scene, without doing
\nanything more, without even carrying a weapon and without
\neven marching along with the other assailants, could also be
\nconvicted with the aid of Section 34<\/a> IPC for the offence
\ncommitted by the other accused.\t In the present case, the
\nFIR shows that A-3 Pavitri Devi was standing on the road
\nwhen the incident happened.  Either she would have reached
\non the road hearing the sound of the commotion because her
\nhouse is situated very close to the scene, or she would have
\nmerely followed her husband and brother out of curiosity
\nsince they were going armed with axe and choppers during the
\nwee hours of the night.\t It is not a necessary conclusion
\nthat she too would have accompanied the other accused in
\nfurtherance of the common intention of all the three.\n<\/p>\n
\tMr. Pramod Swarup, learned counsel for the State
\ncontended that if she remained at the scene without sharing
\nthe common intention she would have prevented the other two
\naccused from doing the ghastly acts because both of them
\nwere her husband and brother respectively.  The inaction of
\nPavitri Devi in doing so need not necessarily lead to the
\nconclusion that she shared a common intention with others.
\nThere is nothing to show that she had not earlier tried to
\ndissuade her husband and brother from rushing to attack the
\ndeceased.\n<\/p>\n
\tThus we are unable to hold that Pavitri Devi shared
\ncommon intention with the other accused and hence her
\nremaining passively on the road is too insufficient for
\nreversing the order of acquittal passed by the High Court in
\norder to convict her with the aid of Section 34<\/a> IPC.\n<\/p>\n
\tMr. K.B. Sinha, learned senior counsel made an all out
\neffort to save the convicted appellants from death penalty.
\nThe trial court and the High Court have given very cogent
\nreasons and quite elaborately for choosing the extreme
\npenalty.  Knowing fully well that death penalty is now
\nrestricted to the rarest of rare cases in which the lesser
\nalternative is unquestionably foreclosed as held by the
\nConstitution Bench in Bachan Singh vs. State of Punjab<\/a> {1980
\n(2) SCC 684} we could not persuade ourselves in holding that
\nthe acts committed by A-1 Suresh and A-2 Ramji should be
\npulled out of the contours of the extremely limited sphere.
\nMr. K.B. Sinha cited a number of decisions including Panchhi
\nand ors. vs. State of U.P<\/a>. {1998 (7) SCC 177} in an
\nendeavour to show that this Court had chosen to give the
\nalternative sentence in spite of the ferocity of the acts
\nperpetrated and a number of victims involved.  None of such
\ncases is comparable with the facts in this case. Even after
\nbestowing our anxious consideration we cannot persuade
\nourselves to hold that this is not a rarest of rare cases in
\nwhich the lesser alternative is unquestionably foreclosed.\n<\/p>\n
Accordingly we dismiss both the appeals.\n<\/p>\n
J
\n\t\t\t\t\t\t\t\t[ K.T. Thomas ]<\/p>\n
New Delhi;\n<\/p>\n
March 2, 2001.<\/p>\n
\n1<\/span>\n\n18<\/span>\n\nIN THE SUPREME COURT OF INDIA\n\nCIVIL APPELLATE JURISDICTION\n\nCRIMINAL APPEAL NO. 247 OF 1991\n\n\nSohan & Anr.\t\t\t\t\t\t\t... Appellants\n\nVersus\n\nState of Haryana & Anr.\t\t\t\t\t... Respondents\n\nWith\n\nCriminal  Appeal No. 731 of 1991\n\nRajinder and others\t\t\t\t\t\t... Appellants\n\nVersus\n\nState of Haryana\t\t\t\t\t\t... Respondents\n\n\n\n\n\n\nJ U D G M E N T\n\nShivaraj V. Patil J.\n\n\n<\/pre>\n
\tThese appeals are directed against the judgment and order
\nof the High Court of Punjab & Haryana made in Criminal Appeal No.
\n454-DB of 1985.\n<\/p>\n
\tThese appellants were accused nos. 1 to 6 before the
\nSessions Court.\t A-1 is the father of A-2.  A-3 is the father of
\nA-4 to A-6.  A-1 and A-3 are brothers by birth.\n<\/p>\n
\tThe prosecution case as unfolded by PW-7 at the trial is
\nthat on 11.2.1985 the deceased Daya Nand and PW-7 Hoshiar Singh
\nhad started from their village in order to reach Bhiwani to
\nattend court hearing in the appeal.  When they were at the
\noutskirts of the village, the six accused emerged from behind
\nstones.\t Randhir (A-2) and Kartar (A-5) were armed with pharsis
\nand rest of them with lathis.  They surrounded the deceased and
\nPW-7 saying In Ko Aaj Yahin zamin dai do aur khata kar do.
\nLooking to the danger, the deceased and PW-7 ran into the nearby
\nhouse of Nanak, the door of which was open.  The accused chased
\nthem.  PW-7 ran ahead deeper into the house and reached a point
\nwhere there is a Neem tree and which is at higher level.  He
\nlooked back and saw Daya Nand had scaled a dauli (a small wall).
\nHe was overtaken by Randhir who had also jumped over the dauli.
\nRandhir gave a pharsi blow on Daya Nand.  At that stage, accused
\nPartap reached there and he also gave three lathi blows to Daya
\nNand in the back.  Sohan, Ramanand and Rajinder also arrived
\nthere and each of them gave one lathi blow to Daya Nand.  Sumer,
\nson of Nanak, the owner of the house having come out of the house
\nalso saw this occurrence.  After dealing with Daya Nand, the
\naccused proceeded to chase PW-7 but he ran away to his house.
\nAfter reaching home, he narrated, as to what happened, to his
\nbrother Dani Ram and cousin Tara Chand who were sitting at the
\nentrance of the house and brought them to the spot of occurrence.
\nThey found Daya Nand lying unconscious\tand the accused had run
\naway.  They took Daya Nand to his house.  From there, they
\nbrought him to Primary Health Centre at Gopi at about 8.00 or
\n8.15 A.M.\n<\/p>\n
\tAccording to PW-1, Dr. Dilbagh Singh, Incharge of the Gopi
\nPrimary Health Centre, Daya Nand was brought to hospital at 8.30
\nA.M.  His condition was serious as he was having multiple
\ninjuries; after giving emergency treatment, referred him to
\nGeneral Hospital, Bhiwani giving a ruqa to Police Station,
\nBadhra.\n<\/p>\n
\tPW-2, Dr. R.N. Swami, attended Daya Nand at General
\nHospital, Bhiwani.  He sent ruqa at 10.10 A.M. to the Incharge,
\nPolice Post, General Hospital, Bhiwani and proceeded with medical
\nexamination.  He found 12 injuries on Daya Nand.  In response to
\nthe ruqa sent by PW-2, Sub-Inspector, Udey Chand (PW-9),
\nIncharge, Police Post, General Hospital, Bhiwani reached the
\nemergency ward at 10.20 A.M. to find out if Daya Nand was in a
\nfit condition to make statement.  The doctor gave opinion that
\nDaya Nand was unfit to make a statement.  PW-9 has stated that a
\nman who was present by the side of Daya Nand told him that PW-7
\nhad gone to bring medicine.  PW-9, Udey Chand could meet PW-7 at
\nabout 12.15 P.M. and recorded his statement as per Ex. PK\/1 which
\nconstituted F.I.R. in the case.\t With his endorsement PK\/2, PW-9
\ngave ruqa Ex. P.C. along with his application made to the doctor
\nand copy of M.L.R. with a direction to carry to the Police
\nStation Badhra for the registration of the case.\n<\/p>\n
\tDaya Nand died at 12.10 A.M. on 12.2.1985.  PW-2, Dr. Gupta
\nintimated this fact to the Incharge, Police Post of the Hospital,
\nBhiwani.  The dead body was subjected to post-mortem examination
\nby Dr. R.G. Jindal (PW-4).  The accused Randhir surrendered to
\nthe court on 14.2.1985.\t The remaining accused were also arrested
\non 15.2.1985.  Thereafter recoveries were made at the instance of
\nthe accused as per the details given in the judgment of the
\nSessions Judge in paragraphs 20-27.\n<\/p>\n
\tIn support of the case, the prosecution examined 12
\nwitnesses including PW-6 Amir Chand, Draftsman and PW-10 Deep
\nChand, the Headmaster of Government High School, Dalawas.\n<\/p>\n
The learned Sessions Judge relying on the evidence of sole
\neyewitness PW-7\t Hoshiar Singh convicted all the accused for the
\noffences under Sections 148<\/a> and 302<\/a> read with Section 149<\/a> of IPC.\n<\/p>\n
\tIt is unfortunate that the approach and appreciation
\nadopted by the Sessions Court was manifestly erroneous and
\ncontrary to the well-settled principles of law.\t It may be said
\nthat the approach of the learned Sessions Judge has been one-
\nsided.\tLapses, omissions and contradictions in the prosecution
\ncase were either condoned or lightly brushed aside or were
\nsupported without any justification against the probabilities
\nappearing in the case which is clearly demonstrated hereinbelow.
\nIt should be remembered that PW-7  Hoshiar Singh is the cousin
\nof the deceased Daya Nand.  Admittedly, there was civil
\nlitigation between the accused on the one side and deceased Daya
\nNand and himself and others on the other side.\tThe alleged
\nmotive for the commission of offence is the very civil
\nlitigation.  The suit for permanent injunction in respect of land
\nin dispute was filed on 11.3.1982 by accused Sohan in which
\ntemporary injunction order was granted against the deceased and
\nPW-7 and others which was confirmed later after hearing both the
\nparties.  Thereafter the suit itself was decreed on 20.12.1983.
\nThe deceased Daya Nand and PW-7 had filed appeal against the
\ndecree in the Court of Addl. District Judge, Bhiwani on
\n23.1.1984.  Pw-7 had however admitted that accused Sohan was in
\nexclusive possession of the said land.\tThese facts are
\nestablished by documents Ex. DA\/1 to DA\/10.  PW-7 in the F.I.R.
\nas well as before the curt had claimed that civil suit with
\nregard to the joint land was instituted by him and Daya Nand
\nagainst other co-sharers Sohan and others and that the same was
\ndismissed.  This was incorrect and belied by Ex. DA\/1 to DA\/10.
\nWhen it was pointed out that PW-7 was not trustworthy as he had
\nmade false statement against the records being himself party to
\nthe proceedings, the learned Sessions Judge in para 35 of the
\njudgment, dealing with the same has stated thus :-\n<\/p>\n
The criticism is factually correct but it does
\nnot make any dent in the prosecution case.\n<\/p>\n
Hoshiar Singh is an illiterate witness and is
\nnot expected to know the background details of
\nlitigation.  Suffice it to say that it is a
\ncommon case of the parties that there was
\nlitigation over the land.  In other words,
\nthere was bad blood between them and that is
\nenough for our purpose.\n<\/p>\n
According to the learned Sessions Judge, it was enough for
\nthe purpose of establishing motive of the accused to commit the
\ncrime but failed to objectively consider why it was not enough to
\ndisbelieve the evidence of PW-7 in view of the fact that he was
\nboth interested and partisan that too in the absence of any
\ncorroboration.\n<\/p>\n
As to the contention that PW-7, Hoshiar Singh, was most
\nunlikely to accompany the deceased to Bhiwani on the date of
\noccurrence on the ground that looking to Ex. DA\/5 to DA\/10, the
\norder passed in the appeal, the presence of PW-7 was not there
\nand in the appeal his presence was not required on 11.2.1985, the
\nlearned Sessions Judge observed that there was no bar for PW-7
\nfrom attending the court and that he was illiterate person and
\ndid not know what proceedings were to take place.  That learned
\nSessions Judge added on his own Even otherwise also, the
\nparties do attend even on dates which are not for final
\nhearing.  On behalf of the accused, efforts were made to show
\nthat neither the deceased Daya Nand nor PW-7 Hoshiar Singh on the
\ndate of occurrence at the time mentioned were going from their
\nvillage to Bhiwani, referring to various circumstances, one of
\nthe circumstance being neither any money nor any documents were
\nrecovered from the dead body of Daya Nand.  The learned Sessions
\nJudge has strongly observed thus :-\n<\/p>\n
It is not disputed that injured Daya Nand was
\nfirst carried home.  If he had any documents or
\nmoney on his person, the same might have been
\nremoved by the members of his family.  There
\nwas no point in sending a dying man to the
\nHospital with money or documents in his pocket.
\nThe wiser course would be to remove them.\n<\/p>\n
The case of the accused that it was a blind murder, must
\nhave taken place at night time was brushed aside without any
\ndeeper consideration.\n<\/p>\n
When it was found that there was conflict in the evidence
\nof PWs 6 & 7, the learned Sessions Judge preferred to believe PW-
\n7, a partisan, rather than the PW-6, the Draftsman, a Government
\nservant. The learned Sessions Judge has dubbed him as a dishonest
\nwitness.  If that be so, we fail to understand as to why the
\nprosecution did not treat him as hostile.\n<\/p>\n
When the contradiction in the evidence of PW-11\t Sub
\nInspector Krishan Lal was pointed out with reference to sending
\nof ruqa of the doctor along with the M.L.R., the learned Sessions
\nJudge has stated thus:-\n<\/p>\n
This discrepancy is there, but it is wholly
\nimmaterial.  It appears that the memory of the
\nS.I. was failing him on this point.\n<\/p>\n
\tSimilarly when it was contended that there was delay in the
\nF.I.R., the learned Sessions Judge has stated that Daya Nand was
\nin a serious condition; everybody including PW-7 were interested
\nto save life of the deceased although the Sub Inspector of Police
\nwent to hospital at 10.20 AM, he could not meet PW-7 till 12.20.
\nIt is stated that PW-7 had gone to buy medicines and as such he
\nwas not available.  The presence of PW-7 in the hospital was not
\nspoken to by the doctor on duty and even his name was not
\nmentioned as a person accompanying the deceased to the hospital.
\nWith all this, the learned Sessions Judge says that the delay in
\nF.I.R. is never vital per se when the evidence otherwise inspires
\nconfidence.  It is strange as to how such evidence of PW-7 alone
\nwithout any corroboration could be said to inspire confidence.\n<\/p>\n
Again when contradiction in the statement of ASI Kaura Ram
\nwas shown with regard to leaving police station for starting
\ninvestigation, the learned Sessions Judge has stated thus:-\n<\/p>\n
Surely, the statement of A.S.I. Kaura Ram does
\nnot tally with the record.  But for whatever
\nreason this lacuna may be, it does not go to
\nthe root of the matter even if we exclude the
\npresence of Kaura Ram from the scene on
\n11.2.1985, the prosecution case will remain
\nunaffected.\n<\/p>\n
\tThe learned Sessions Judge did not appreciate the evidence
\nobjectively. He failed to see that all the male members 3of the
\ntwo families of the accused were involved because of enmity on
\naccount of land dispute. The evidence of PW-7, the sole eye-
\nwitness without any corroboration ought to have been scrutinized
\nwith great caution who has given the graphic details as to the
\ninjuries caused by each accused when he himself was frightened
\nand was running away.\n<\/p>\n
\tThe trial court partly believed the recovery of weapons and
\nclothes but the High Court totally disbelieved the recovery.
\nThis was also strong circumstance against the prosecution.\n<\/p>\n
\tReacting to the submission that non-examination of another
\neye-witness Sumer the learned Sessions Judge has stated thus :-\n<\/p>\n
But Sumer was given up as having been won over
\nby the accused.\t And the phenomenon of such
\nwinning over is not unknown to the courts.  In
\nany event, Sumers non-examination does not
\nwash away the remaining evidence.\n<\/p>\n
\tThis approach of the learned Sessions Judge is unusual and
\nstrange.  The learned Sessions Judge failed to objectively assess
\nand analyse the evidence and circumstances consistent with
\ncrystalised judicial view and that it was unsafe to act on the
\nsole evidence of PW-7 in the circumstances.
\n\tAn accused is presumed to be innocent until he is found
\nguilty.\t The burden of proof, that he is guilty, is on the
\nprosecution and that the prosecution has to establish its case
\nbeyond all reasonable doubts.  In other words, the innocence of
\nan accused can be dispelled by the prosecution only on
\nestablishing his guilt beyond all reasonable doubts on the basis
\nof evidence.  In this case, if only the Sessions Judge had
\nreminded himself of the above-mentioned basic or fundamental
\nprinciples of criminal jurisprudence, direction of his approach
\nand course of his appreciation of evidence would have been
\ndifferent and thereby perversity in appreciation of evidence
\ncould have been avoided.\n<\/p>\n
\tIt is equally unfortunate that the High court did not
\nseriously and objectively re-appreciate the evidence placed on
\nrecord as the first appellate court, but has simply appended its
\nseal of approval to the judgment of the Sessions court.\t When it
\nwas pointed out that PW-7 was not a truthful witness inasmuch as
\nhe gave false statement with regard to the very litigation
\nbetween the parties, the High Court observed that whatever may be
\nthe situation that a case was fixed in the appeal on 11.2.1985
\nand to attend the proceedings in the appellate court, someone had
\nto go to the court.  We fail to understand as to how someone had
\nto essentially go to attend the court in appeal.  The High Court
\nproceeded to say that PW-7 had no reason to falsely implicate the
\naccused 4 to 6 unless they were there.\tThe observation of the
\nHigh Court is that :-\n<\/p>\n
The manner in which Daya Nand deceased and
\nHoshiar Singh PW-7 were chased also shows that
\nthe accused were sufficient in number.\tThe
\nnumber and type of injuries on the dead body
\nof Daya Nand deceased also suggests that the
\nnumber of assailants was quite big.  These
\ncircumstances lend assurance to the truthful
\nnature of this version.\n<\/p>\n
\tWe are unable to understand as to how chasing deceased Daya
\nNand and PW-7 showed that the accused were sufficient in numbers
\nand similarly how the number and types of injuries on the
\ndeceased suggested that the number of assailants was quite big.
\nIf this is accepted, the number of accused could be more than
\nsix.  Commenting on the non-examination of another eye-witness
\nSumer, the High Court has stated  thus :-\n<\/p>\n
As the land dispute between Daya Nand and his
\ncollateral on the one side and Sohan Lal
\naccused on the other had resulted into this
\nincident, Sumer, his father and other people in
\nthe village may not have liked siding with
\nanybody.  These days it is commonly seen that
\nin such disputes, people normally abstain
\nthemselves from involving into the affairs of
\nothers by taking stand in favour or against any
\nof the parties.\n<\/p>\n
\tIn the absence of any explanation by the prosecution as to
\nthe non-examination of the Sumer, this sort of conjecture by the
\nHigh Court was neither warranted nor sustainable.  The High Court
\nhas made further guess work by stating that:-\n<\/p>\n
There may be other reasons for Sumer to stay
\naway from the witness box which may not be
\nenvisaged by us.\n<\/p>\n
\tIn regard to non-examination of Dani Ram, the brother of
\nPW-7 and Tara Chand, the cousin of PW-7, the High Court has
\nstated that their appearance or non-appearance could hardly
\nimprove matters in favour of the accused.\n<\/p>\n
\tIt was pointed out that when Daya Nand was taken to Bhiwani
\nhospital, Tara Chand was with him at the time of his medical
\nexamination and if PW-7 was with the deceased at that time, his
\npresence would have been recorded by the doctor.  The doctor
\nstated that Tara Chand was there.  PW-7 himself had stated that
\nTara Chand had accompanied him when he took Daya Nand, the
\ndeceased, to the hospital.  This was another reason why Tara
\nChand should have been examined.  Non-mentioning the name of PW-7
\nas accompanying the deceased to the hospital also raises the
\ndoubt as to his presence in the hospital.\n<\/p>\n
\tThe High Court has disbelieved the recovery of the clothes
\nand weapons of the offences.  With all this, the High Court
\naffirms the judgment of conviction of the Sessions Court acting
\non the evidence of PW-7 alone.\n<\/p>\n
\tWe may add that the prosecution case entirely rested on the
\nsole evidence of PW-7, who was not only interested being the
\ncousin of the deceased and was inimical too to the accused in
\nview of the civil litigation referred to above.\t It was unsafe to
\nact on his evidence without any corroboration.\tAlthough there
\nwere material witnesses available to corroborate, their non-
\nexamination or withholding their evidence was a serious lacuna in
\nthe prosecution case.  Non-examination of another eye-witness,
\nSumer, whose name was mentioned in the FIR and who had witnessed
\nthe occurrence according to PW-7, was also fatal.  PW-7 stated
\nthat he himself, his brother Dani Ram and his cousin Tara Chand
\nwent to the place of occurrence and lifted Daya Nand to his house
\nand their clothes got bloodstained.  The bloodstained clothes
\nwere neither produced nor seized.    Failure to do so raises a
\nserious doubt as to the version of PW-7.  Dani Ram and Tara Chand
\nwere also not examined.\t PW-7 stated that immediately after the
\noccurrence he ran towards his house; in front of his house Dani
\nRam and Tara Chand were sitting, he informed them and narrated
\nabout the incident and thereafter all three of them went to the
\nplace of occurrence and brought the deceased Daya Nand to his
\nhouse.\tIf only Dani Ram and Tara Chand were examined they would
\nhave corroborated the evidence of PW-7.\t This again shakes the
\nprosecution case.  The High Court disbelieved the recovery of
\nboth weapons and clothes.  In all cases recovery by itself may
\nnot be material.  But in this case in the absence of
\ncorroboration to the evidence of PW-7, the recovery aspect
\nassumed importance.  The civil litigation was started in 1982;
\nthe suit was decreed in favour of Sohan, accused no. 1 in 1993;
\nthe appeal filed by the deceased and PW-7 was pending on the date
\nof occurrence; there was no immediate provocation or cause for
\ncommitting the offence on 11.2.1985.\n<\/p>\n
\tThe credibility of PW-7 and truthfulness of his evidence in
\nthe circumstances needed to be scrutinized with great care and
\ncaution.  His evidence does not inspire confidence for the
\nreasons that (a) though he was a party to the civil suit as a
\ndefendant along with deceased Daya Nand, he falsely stated that
\nit was deceased Daya Nand who filed the suit, when as a matter of
\nfact it was the accused no. 1 Sohan, who had filed the suit. (b)
\nHe had made a wrong statement as to the possession of the
\ndisputed land but he was forced to admit the possession of
\naccused Sohan in the cross-examination. (c) He stated, When the
\nDraftsman came to the spot I was not there.  PW-6, the
\ndraftsman clearly stated in his evidence that he prepared the
\nsite plan Exh. PN on the pointing out of PW-7 and Sumer (not
\nexamined by the prosecution).  (d) He stated, We had picked up
\nDaya Nand from the spot on our hands.  Our clothes had got blood
\nstained in this process. He further stated, I had not shown my
\nblood stained clothes to the police.  I had changed my clothes
\nbefore leaving for Bhiwani.\n<\/p>\n
\tIn the light of what is stated above, after deeper
\nconsideration, detailed examination of evidence and probabilities
\nof the case, in the light of the arguments advanced by the
\nlearned counsel on either side, we have no hesitation in holding
\nthat the Sessions Court as well as the High Court have
\nconcurrently and manifestly erred in convicting and sentencing
\nthe accused.  In a case like this it is our duty to interfere
\nwith the impugned judgment and order to do substantial justice.
\n\tUnder these circumstances and in view of the discussion
\nmade above, we have no hesitation in holding that the prosecution
\nhas failed to establish the guilt of the accused beyond
\nreasonable doubt.  Hence we set aside the judgment and order of
\nthe Sessions Court as affirmed by the High Court.  Accordingly,
\nthese appeals are allowed and the accused are acquitted and their
\nbail bonds shall stand discharged.\n<\/p>\n
\t\t\t\t\t\t\t……………….J.\n<\/p>\n
\t\t\t\t\t\t    ( U.C. BANERJEE )<\/p>\n
\t\t\t\t\t\t\t……………….J.\n<\/p>\n
\t\t\t\t\t\t    ( SHIVARAJ V. PATIL)<\/p>\n
New Delhi
\nDated: 02.03.2001<\/p>\n
14<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-249814","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India & Ors vs Sunil Kumar Sarkar on 28 February, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-sunil-kumar-sarkar-on-28-february-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Union Of India & Ors vs Sunil Kumar Sarkar on 28 February, 2001 - 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