Kharkan And Others vs The State Of U.P

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 95 of 1961

Decision Date: 29 August 1963

Coram: M. Hidayatullah, S.K. Das, K.C. Das Gupta

In this matter the Court recorded that the appeal was filed by Kharkan and several others against the State of Uttar Pradesh. The judgment was delivered on 29 August 1963 by a Bench consisting of Justice M. Hidayatullah, Justice S. K. Das and Justice K. C. Das Gupta. The case is reported in 1965 AIR 83 and in the 1964 Supreme Court Reporter at page 673, and the citation also appears in the 1965 Criminal Law Reports, reference 87 (10). The criminal statutes involved were sections 403, 236 and 237 of the Code of Criminal Procedure, 1898. The factual background, as set out in the headnote, described that eight accused, each armed, attacked a person identified as “T” and caused his death. After the killing they proceeded to loot T’s house and, on their way, encountered four additional individuals who joined them. Subsequently they came upon a person designated “P” and assaulted him. The assaults on T and on P occurred at different locations and were separated by a short interval of time. Although the magistrate initially framed a single charge, the Sessions Judge split the case into two separate charges, one relating to the attack on T and the other to the attack on P, and ordered separate trials for each charge. The Sessions Judge convicted the accused on both counts. The appeal concerning the assault on P was first heard by the High Court, which acquitted the accused of the alleged participation in an unlawful assembly. Later the High Court heard the appeal connected with the assault on T and upheld both the convictions and the sentences imposed. The present appeal before the Supreme Court therefore arose from the High Court’s confirmations of the convictions and sentences in the case of the assault on T.

The appellants contended that their earlier acquittal in the case involving P operated as a bar to any subsequent conviction for the assault on T, relying on the Privy Council decision in Sarnbasivam v. Public Prosecutor, Federation of Malaya, and on the Supreme Court’s earlier judgment in Pritam Singh v. State of Punjab. The Court held that the present appeal was materially different from the two authorities cited. It observed that the assault on T had been completed before the unlawful assembly formed a new common object, namely the assault on P, and therefore the two incidents were distinct. The Court explained that the statutory defence of autrefois acquit, recognised under section 403 of the Code of Criminal Procedure, applies only when a person is retried for the same offence or for the same facts of another offence that could have been charged under section 236 or could have led to a conviction under section 237. Since the charge in the earlier case was completely different from and independent of the charge in the present case, the prior acquittal did not bar the conviction. The Court further noted that sections 236 and 237 were inapplicable because the offences were distinct, citing the authorities Sarnbasivam v. Public Prosecutor, Federation of Malaya, Pritam Singh v. State of Punjab, Gurcharan Singh v. State of Punjab, and Mohinder Singh v. State of Punjab. Finally, the Court stated that, absent special circumstances, it would not re‑examine evidence that had already been accepted by the High Court and the trial court for a third time.

In the present case, the Court observed that sections 236 and 237 of the Code of Criminal Procedure did not apply because the two offences under consideration were distinct and unrelated. The Court referred to the authorities of Sambasivam v. Public Prosecutor Federation of Malaya, [1950] A.C. 458; Pritam Singh v. State of Punjab, A.I.R. 1956 S.C. 415; Gurcharan Singh v. State of Punjab, [1963] 3 S.C.R. 585; and Mohinder Singh v. State of Punjab, Criminal Appeal No. 140 of 1961 decided on 31‑7‑63, as illustrative of the principle that the statutory provisions concerning res judicata under ss. 236 and 237 are inapplicable when the offences are factually separate. The Court further pronounced that, absent any special circumstances, it would not undertake a third review of evidence that had already been accepted by both the High Court and the trial court. The judgment was delivered under the criminal appellate jurisdiction in Criminal Appeal No. 95 of 1961, arising by special leave from the order dated 15 February 1961 of the Allahabad High Court in Criminal Appeal No. 1597 of 1960. Counsel for the appellants were D. S. Tewatia and K. B. Mehta, while counsel for the respondents were O. P. Rana and C. P. Lal. The judgment was pronounced on 29 August 1963 by Justice Hidayatullah. This appeal by special leave challenged the decision of the Allahabad High Court in Criminal Appeal No. 1597 of 1960, which had been decided on 15 February 1961. The appellants comprised eight individuals who had been convicted under section 325 read with section 149 of the Indian Penal Code and sentenced to three years of rigorous imprisonment. In addition, they had been convicted under sections 147 and 148 of the Indian Penal Code and awarded shorter concurrent sentences, which the Court noted need not be reiterated. Originally, the eight were charged under section 302 read with section 149 of the Indian Penal Code for the murder of a person named Tikam, alleged to have occurred on 24 January 1960 at about noon in the village of Nandgaon, Police Station Barsana, District Mathura. The Sessions Judge at Mathura held that the facts did not satisfy the requirements for a murder charge and convicted the appellants of the lesser offence. Their appeal to the High Court was dismissed, and the convictions and sentences were upheld. Subsequently, a second trial was conducted in which the same eight persons, together with four others, faced charges under section 307 in conjunction with section 149 of the Indian Penal Code for causing hurt to a person identified as Puran with the intention and circumstances that, had the act resulted in death, it would have constituted murder. They were also charged under sections 147 and 148 for being members of an unlawful assembly whose common object was to attempt Puran’s life. The learned Sessions Judge, Mathura, in the second proceeding, found that the injuries sustained by Puran justified a conviction under section 323 of the Indian Penal Code. The accused and Puran entered into a compromise of that offence, resulting in the acquittal of all the accused on that charge. Nevertheless, the Sessions Judge convicted eleven of the twelve accused under sections 147 and 148 of the Indian Penal Code, imposing varying sentences based on the weapons each had possessed.

The trial court accepted the allegation that one of the accused had been blind from birth. In the second case, eleven accused appealed to the High Court, and that Court acquitted them of the charge of being members of an unlawful assembly. The High Court’s judgment was rendered on 31 January 1961 in Criminal Appeal No 1598 of 1960, fifteen days before the confirmation of the convictions and sentences of the eight appellants in the present appeal. The factual background can now be set out. There was longstanding enmity between the deceased, Tikam, and the appellants. On 24 January 1960, at approximately noon, Tikam was seated inside a black‑smith’s shop in the village of Nandgaon. Two persons, identified as Dulli and Nathi and examined as Prosecutors’ Witnesses 2 and 3, were sitting near Tikam. The appellants arrived at the shop armed with Ballams, a Pharsa and Lathis. Upon seeing Tikam, they immediately began to assault him. Tikam suffered severe injuries and fell into a ditch beside the road, but the attackers continued their assault even after he had fallen. He died on the same day, about five hours after the attack commenced. After assaulting Tikam, the same group decided to ransack his house and proceeded in that direction. En route they encountered four additional accused, increasing their number to twelve. While advancing toward Tikam’s house they saw another individual, Puran, and chose to beat him as well. Puran was assaulted, giving rise to the second case concerning his injury. The learned magistrate who committed the accused to stand trial before the Court of Sessions initially framed a single charge covering both incidents. However, the Sessions judge amended this charge, separating it into two distinct charges—one relating to the attack on Tikam and the other to the attack on Puran—and ordered separate trials for each charge. As previously noted, the eight appellants were convicted for the assault on Tikam, and the same eight together with three others were convicted for the assault on Puran. The appeal in the second case was heard first and was allowed by the High Court, resulting in the acquittal of all eleven appellants in that appeal, including the eight presently before this Court. Counsel for the petitioners argued before us that Justice Sharma, who delivered the impugned judgment, did not afford the appellants an opportunity to reply to the State’s arguments, thereby denying them a fair hearing. This contention was mentioned in the petition for a certificate in the High Court and was reiterated in the petition for special leave. It was observed that Justice Sharma proceeded to deliver judgment immediately after the arguments concluded, and the judgment was pronounced over two consecutive days in the presence of the appellants and their counsel. The counsel further submitted that, had any such right been denied, the appellants should have raised the grievance instantly before the learned judge, who would have had an opportunity to rectify the situation.

In regard to the allegation that the appellants were denied a fair hearing because they were not afforded an opportunity to reply to the State’s arguments, the Court observed that the record showed no indication that the appellants ever raised such a grievance before the learned judge. The petition for certificate mentioned the issue, but the appellants did not press the matter when the judge delivered his judgment. The Court noted that if the appellants had believed they were being denied a chance to be heard, they could have raised the objection at the time the judgment was being pronounced. The Court further inferred that the appellants may have been anticipating an acquittal based on the earlier decision in the companion case and only realized belatedly that their present appeal had not been accepted. Consequently, they did not request the judge to certify the appeal on the ground of an unfair hearing, and the judge’s order contains no reference to any such complaint. Because the objection was never formally raised before the trial judge, the Court concluded that it could not be taken up for consideration at this stage.

The second contention raised by the appellants was that the earlier acquittal in the second case should operate as a bar to any conviction in the present case, and that the High Court ought to have given the appellants the benefit of that prior acquittal. The appellants relied on a decision of the Privy Council reported in Sambasivam v. Public Prosecutor/Federation of Malaya(1), particularly a passage from Lord Mac Dermott’s judgment which stated that an acquittal pronounced by a competent court is binding and conclusive in all subsequent proceedings between the parties, and that the principle of “res judicata pro veritate accipitur” applies equally to criminal matters. The passage explained that, although the acquittal does not amount to a declaration of innocence on a different charge, it does reduce the weight of the prosecution’s case because facts proved in support of one charge are relevant to the other, especially where the items seized are related.

The Court acknowledged that this passage had been cited with approval in Pritam Singh v. State of Punjab(1). However, the Court noted that the present matter had been distinguished from the Privy Council decision and from the Singh cases in earlier judgments, namely Mohinder Singh v. State of Punjab(2) and Gurcharen Singh and anr. v. State of Punjab(1). In Mohinder Singh, the Court observed that the Privy Council case involved a confession in which the accused admitted possession of both a firearm and ammunition, and that the appellate court had set aside a conviction because the confession could not be divided to support separate convictions after an earlier acquittal on the ammunition charge. The Court therefore held that the factual and evidential context of the present appeal differed from that of the cited authorities, and that the earlier acquittal in the companion case did not automatically bar a conviction in the present case.

In the Privy Council case, the accused faced two offences under the law of the State of Malaya, one for possession of a firearm and another for possession of ammunition; he was convicted on both counts based solely on his confession, but on appeal he was acquitted of the ammunition charge and the court ordered a fresh trial on the firearm charge, and at the second trial the same confession was again relied upon to secure a conviction, yet the Privy Council set aside that conviction because the confession could not be divided into separate parts concerning the two distinct possessions, and consequently the confession was held to be unusable in light of the earlier acquittal on the ammunition count, a principle reiterated in the judgments cited as (1) A.I.R. 1956 S.C. 415, (2) Cr. A. No. 140 of 1961, decided on 31‑7‑63 (Unreported), and (3) [1963] 3 S.C.R. 585. In Pritam Singh’s case (1), the accused made a statement that led to the recovery of a firearm with which a victim was allegedly shot; although he was prosecuted for possession of that firearm and was acquitted, the evidence of possession was nevertheless introduced in the murder charge, a course of action that this Court declared impermissible. As explained in Mohinder Singh’s case (2), the earlier acquittal on the firearm possession charge rendered the same evidence inadmissible in the murder proceeding because the firearm could not simultaneously be possessed and not possessed by the accused, and that acquittal under the Arms Act therefore barred its use in the subsequent charge. The decisions in Mohinder Singh’s case (2) and in Gurcharan’s case (3) distinguished Pritam Singh’s case (1) because, in those earlier matters, the acquittal under the Arms Act occurred after the conviction on the substantive charge, a factual difference that does not exist in the present appeal. In the present matter, there is undeniably a prior acquittal, but it relates to a charge that is entirely different and independent of the charge presently under consideration; the assault on Tikam concluded before the unlawful assembly adopted its common objective of assaulting Puran, and the acquittal was primarily due to Puran’s compounding of the offence under section 323, with the High Court finding the remaining evidence insufficient to sustain a conviction, and the charges on which that acquittal was based bear no relation to the charges that resulted in the current conviction. A plea of autrefois acquit, which is statutorily recognized in India under section 403 of the Code of Criminal Procedure, arises only when a person is tried again for the same offence or for any other offence based on the same facts for which a different charge might have been brought, a situation not applicable to the facts of this appeal.

The Court explained that the provisions of the Code of Criminal Procedure dealing with double jeopardy were not applicable to the facts of the present case. Section 236 of the Code was described as a provision that could be invoked when it is uncertain which offence has been committed. The section allows the prosecution to charge the accused with all of the possible offences that may arise from the acts proved, and permits the trial of any number of such charges together, or alternatively, to charge the accused in the alternative with one of those offences. Section 237 was then outlined as a power that enables a court to convict an accused of a different offence from the one originally charged, if the evidence shows that a different offence has actually been committed. The Court held that neither of these sections could be invoked because the two offences under consideration were separate in nature and occurred at different times and places. The two trials had been conducted separately because the incidents were regarded as distinct transactions. Even assuming that the incidents might be linked by a common thread of time or place, the Court observed that the offences remained distinct and required separate charges. The assault on Tikam, which was carried out in furtherance of the unlawful assembly’s common object, concluded when the assembly entered Tikam’s house to loot it. The later common object of beating Puran arose only after the objective concerning Tikam had been fully achieved; consequently, the two incidents could not be said to form a single transaction, and the offences were different in character, necessitating independent charges. Accordingly, the learned Sessions Judge was correct in disintegrating the single charge framed by the magistrate and ordering distinct trials for each offence. In view of this, the earlier acquittal could not bar the conviction now rendered.

Mr. Tewatia argued that the earlier judgment was based on almost the same evidence and that the reasoning of the trial judge in the Puran case undermined the prosecution’s case in the present appeal. He attempted to invoke the earlier judgment to support his contention. The Court rejected this approach, stating that the reasoning in the earlier judgment could not be relied upon because it was based on evidence that had been recorded and assessed separately. The Court noted that the present case involved five eyewitnesses, whereas the earlier case had only two, and that aside from this numerical difference, the earlier judgment could be relevant only if it satisfied the conditions prescribed by sections 40 to 43 of the Indian Evidence Act. While the earlier judgment could be admitted to demonstrate the parties involved and the decision reached, it could not be admitted for the purpose of using its assessment of the evidence. Since the bar envisaged by section 403 of the Criminal Procedure Code did not apply, the Court held that the earlier judgment was not pertinent for interpreting the evidence in the present case.

In this matter, counsel for the petitioner, Mr. Tewatia, sought to advance arguments concerning the factual matrix of the present case. The Court, however, declined to allow such argumentation because, in the absence of any special circumstances, it adheres to the principle that evidence already accepted by the High Court and the trial court will not be revisited for a third time. The Court emphasized that this procedural rule operates to maintain finality of judgments, and that it may be set aside only when exceptional conditions are demonstrated. No party, including the petitioner, identified any such exceptional condition that would justify departing from this settled practice. Consequently, the Court found no basis to reopen the evidentiary findings that had been affirmed by the lower tribunals. On that factual and procedural foundation, the Court concluded that the appeal could not succeed and therefore ordered its dismissal. The dismissal was affirmed unequivocally, and the order of dismissal was entered as the final disposition of the appeal.