minal Appeal No 69885 with 5986
From the Judgment and Order dated 3041985 of the Punjab and Haryana High Court in Crl
A No 345 DB of 1984
RL Kohli and Prem Malhotra for the Appellants in Crl
A No 69885
O P Sharma RC Gunbrele KR Gupta Mrs Nanita Sharma Vivek Sharma and
Kamaljeet Singh for the Appellant in Crl
A No 5986
KC Bajaj and Ms Indu Malhotra NP for the Respondent
J One appeal is on behalf of Hari Singh and the other is on behalf of Satbir and Gulbir
They were put on trial along with 67 Suresh Vijender and Virender for having committed the murder of Mange Ram on 7th October 1982
Virender being a minor his trial was separated so that the said may be conducted by Children Court
The remaining five accused were convicted for offences under section 302 read with 149 Section 148 and Section 323 read with 149
Sentence of imprisonment for life was imposed against all the five accused persons under Section 302 read with 149
Whereas under Section 148 each one of them was sentenced to undergo rigorous imprisonment for one year and rigorous imprisonment for three months under Section 323 read with 149
The Sentences were directed to run concurrently
The High Court dismissed their appeal
Special Leave Petition Criminal No2160 of 1985 was filed on behalf of accused Hari Singh Suresh and Vijender
On 23rd September 1985 this Court granted special leave to appeal to appellant Hari Singh but dismissed the said Special Leave Petition so far Suresh and Vijender were concerned
Leave was granted to appellants Satbir and Gulbir on a separate Special Leave Petition filed on their behalf
The case of the prosecution is that in the night intervening 6th and 7th October 1982 Mange Ram hereinafter referred to as the deceased and Ram Kishan PWI6 who is the first cousin of the deceased were returning after witnessing the Ram Leela
At that very time Suresh Satbir Vijender Virinder and Gulbir were also returning after the show
Near the baithak of Jit Ram the accused persons teased some girls of the village who had also gone to see the Ram Leela
The deceased and PW 16 objected to the behaviour of the accused persons towards the girls of their own village
On this it is said that the accused persons abused them which was followed by exchange of abuses from both the sides
Budhi PW 13 intervened and pacified them Next day at about 230 PM
the deceased and PW 16 went to their flour mill to bring back their bullocks and fodder cart
Suresh and Satbir with Pharsas Hari Singh with a Ballam Virinder Vijender and Gulbir with sticks came there
Suresh abused the deceased and PW16 saying that they would teach them a lesson for abusing them ie accused persons on the previous night
Having said so accused Suresh gave a Pharsa blow from the blunt side
on the head of the deceased
Satbir also gave a Pharsa blow from the blunt side on the head of the deceased
PW 1 6 raised an alarm Virinder Vijender and Gulbir gave stick blows to the 68 deceased
It is further the case of the prosecution that when PW16 tried to intervene Hari Singh gave a Ballam blow from the blunt side on his head and Vijender gave a stick blow on the left elbow of PW16
Thereafter an alarm was raised and accused persons fled away from the place of occurrence
The victim was taken to BK Hospital Faridabad on a tractor
From there he was referred to AIIMS New Delhi by Dr OP Sethi PW 1PW 1 also sent information to the Police Post No 5 Faridabad at about 415 PM the victim reached the AIIMS At about 725 PM where he was examined
Raghbir Singh ASI PWI7 who had got the information about the occurrence at the Police Station Chhainsa at 535 PM the same evening from the Police Station New Township Faridabad went to the Institute aforesaid and recorded the statement of PWI6 at 830 PM which was forwarded to the Police Station Chhainsa where a case was registered at 1130 PM the same night PW 1 7 took up the investigation and visited the place of occurrence and collected blood stained earth
The victim died in the Institute the next morning at 700 AM
The postmortem examination was held by PW 1 5 on 8th October 1982 at 430 PM
He found three stitched wounds one on the right varietal region second on the middle of the scalp and the third on the left varietal region
One out of three wounds was an operational surgical wound
From internal examination fracture of right occipital bone and right frontal base was found
He also found contusions on the right thigh left eye and left fore arm of the victim
According to the opinion of PWI 5 the injuries found on the deceased had been caused by application of blunt force and were sufficient in ordinary course of nature to cause death
The Pharsas from which according to the prosecution case the aforesaid injuries had been caused were shown to PW 1 5 the doctor and he stated as follows I have seen the alleged weapon of offence Pharsa EXP 1 and the ante mortem injuries which are noted on the head cannot be inflicted by this weapon
On the opposite side of Pharsa there are two projecting devices for holding the Pharsa with Bamboo having a distance of 15 cm
from each other
Even if Pharsa EXP 1 is used from any of its two sides Between iron blade and the two iron projections referred above 69 even then head injuries mentioned above are not likely to cause
At this stage another sealed parcel containing a Pharsa EXP2 opened at the instance of defence counsel
It was found containing a Pharsa exhibit P2 1 have been this Pharsa also
The distances between two projections holding iron blade with bamboos is about 115 cm
and as such the injuries in question could not be caused by this weapon also either used iron blunt side or iron any of the two sides as stated by me with reference to EX
P 1 It is correct that the injury No 2 is a operational Surgical wound which correspond with internal examination of head and corresponding piece of bone was absent having a size of 12 cm
X 10 cm
 On the person of PWI6 only few superficial injuries were found
On 12th October 1982 the aforesaid Dr OP Sethi PWI of BK Hospital Faridabad examined accused Suresh under the orders of Shri Raj Kumar HCS Judicial Magistrate Faridabad and found the following injuries on the persons of Suresh 1
A diffused and tender swelling over back of left hand all over the wrist joint and lower half of left fore arm
There were bluish mark of two bruises abraised each 12 x 12 over back fore arm
Xray were advised for left wrist joint including lower half of the fore arm and the hands
It was advised for posterior interior and lateral views
A partially healed injury 1  x 18 placed at the top of head 5 above the pinna of right ear
X ray advised for skull in superior view
A partially healed injury 34 x 18 at the left half of head 2 behind the interior hair line
X ray was also advised
A liniar injury having 34 x 18 at right half of head 1 12 behind interior hair line
X ray skull was advised
A vertical injury mark 2 x 12 at the left shin 5 12 above left ankle joint
 The duration of the time in respect of the injuries aforesaid was three to six days
PWI stated in the Court that accused Suresh had been medically examined at the request of the Police and a copy of the medical report was also handed over to the Police
It was urged on behalf of the appellants that on the materials on record the Courts below should have come to the conclusion that prosecution has suppressed the real manner of occurrence and has disclosed a version of the occurrence which cannot be accepted
It was pointed out that accused Suresh Vijender and Virinder are the sons of accused Hari Singh who was aged about 60 years as such it was highly improbable on the part of Hari Singh to join his sons for commiting the murder of Mange Ram who had protested the behaviour of the sons of Hari Singh the previous night with the girls of the village
From the evidence of Rang Lal PW7 it appears that the flour mill of the deceased and the fields of the accused persons are across the same road
The tube well of accused Hari Singh is situated adjoining the mill where Hari Singh has also got tile residential unit
It was urged that in view of the admitted position that the residential unit tube well are by the side of the flour mill of the deceased there was no question of the accused persons going to the flour mill of the deceased to assault the deceased and PWI6
The accused persons and the deceased both having their flour mill and residential unit side by side most probably clashed as a result of a sudden fight in which injuries were caused to the victim as well as to PW16 on the side of the prosecution and on Suresh on the accused side
It may be mentioned that in the First Information Report only the name of Suresh one of the six accused was mentioned in connection with the previous night s incident saying that he along with four or five boys were coming after seeing the Ram Leela and then they started teasing the girls and thereafter an exchange of abuses took place
In the First Information Report it was also stated by PWI6 that accused Suresh and Satbir gave Pharsa blows on the 71 head of the deceased
In the First Information Report PWI6 the informant did not state that the injuries on the head on the head of the victim were caused by the back side of the Pharsa
On behalf of the appellants it was pointed out that this change was introduced after it was found during the postmortem examination that injuries had been caused by application of blunt force  which was inconsistent with the case of assault on the head of the deceased by Pharsa
But merely on the ground that PWI6 the informant
did not mention the name of any other accused in connection with the previous _night incident except Suresh or in the First Information Report having said that Suresh and Satbir gave Pharsas blows on the head of the deceased
Modified the same in court by saying that they gave one Pharsa blow each by the back side of the Pharsa his evidence cannot be rejected outright
But at the same time the case of the prosecution that Hari Singh along with Five accused including a child
went to the flour mill of the deceased with an intention to cause the death of the victim because of the previous night abuses and altercations also does not appear to be the real version of the occurrence
If the intention of the accused persons was to commit the murder then they would not have given blows by the back side of the Pharsa on the head of the deceased
In all probabilities because of the previous night s incident at about 230 PM a sudden fight took place in which accused Suresh and Satbir are alleged to have given blows from the back side of the Pharsa on the head of the deceased
PW 15 the doctor who held the postmortem examination has stated that those injuries had been caused by application of blunt force and has emphatically repudiated that injuries on the head of the deceased could have been caused by two Pharsas Ex P 1 and P2 which had been seized and shown to him during the course of his examination
The injuries from the back side of the Pharsa can be said to have been caused by blunt force
It has been rightly submitted that on basis of the evidence adduced including the evidence of PW 16 the informant it cannot be said be said that accused persons had an intention to cause such injuries on the victim which may result in his death
When they caused those injuries by the blunt side of the Pharsa it will be presumed that they had knowledge that those injuries can cause the death but there was no intention on their part to cause death
As such the Trial Court and the 72 High Court should not have convicted the appellants under Section 302 read with Section 149
On behalf of the State an objection was taken that in view of the dismissal of the Special Leave Petition filed on behalf of two accused Suresh and vijender against whom similar allegations had been made it is not open to this Court now to entertain any plea on behalf of the three appellants because it will be deemed that while dismissing the Special Leave Petition filed on behalf of Suresh and Vijender this Court has affirmed the findings recorded by the Trial court and the High Court in respect of manner of occurrence and participation of the accused persons including the three appellants
It was also pointed out that if any of the appellant is acquitted or the convictions and sentences imposed against them are altered in any manner it will lead to inconsistency in the different orders passed by this Court
It is true that system of the justice which is being administered by the Courts one of the basic principles which has to be kept in view is that Courts of co ordinate jurisdiction should have consistent opinions in respect of an identical set of facts or on question of law
If Courts express different opinions on the identical sets of facts or question of law while exercising the same jurisdiction then instead of achieving harmony in the judicial system it will lead to judicial anarchy
But before any such principle is appliedit must be held that the earlier order passed by this Court dismissing the Special Leave Petition of the coaccused amounts to a judgment or an affirmness of the findings of the High court about the manner of the occurrence participation of the different accused persons and the nature of offence committed by them
Article 136 1 of the Constitution confers overriding and extensive powers of granting special leave to appeal or rejection thereof in the discretion of this Court
Article 136 does not confer a right to appeal it confers only a right to apply for special leave toappeal which taking all facts and circumstances into consideration may be granted or rejected
Even in a case where special leave application is rejected the Order of the High Court does not merge in the Order of this Court as is the case while exercising the appellate power
Similarly when Special Leave Petition is entertained against any final or interlocutory 73 order this court does not convert itself in a court of appeals
It was said in the case of Gain chand V Kunjbeharilal  Chandrachud J as he was then With regard to the first submission it may he pointed out that an application for special leave under Article 136 of the Constitution against a judgement or an order cannot be equated with the ordinary remedy of appeal as of right under any provisions of law
It is an extraordinary right conferred under the constitution within the discretion of this Court and such an application for special heave does not come within the contemplation of appeal pending before the Court under Section 13 A a
 It is a basic principle of the administration of justice that like cases should be decided alike
It is a very sound rule and practice otherwise on same question of law or same set of facts different persons approaching a Court can get different orders
But can the appeal of an accused
who has been granted special leave to appeal be dismissed on the ground that the Special Leave Petition filed on behalf of a coaccused with more or less similar charges has already been rejected by this court
althouhgh this Court is satisfied that either such accused whose appeal is being heard is entitled to acquittal or ought to have been convicted for a different offence with a different sentence
The doctrine of precedent is not applicable to an order passed by this Court rejecting a Special Leave Petition
Any such order cannot be held to be stare decisis so that it is a binding on us
If it is held that as the Special Leave Petition filed on behalf of Suresh and Vijender having been rejected this Court cannot alter the conviction or sentence passed against the three appellants
including the acquittal of any one of them
althogh the Court is satisfied on the materials on record then what was the purpose while rejecting the Special Leave Petition of the co accused Suresh and Vijender to grant leave to appeal so far the present three appellants are concerned At the same time it need not be impressed that rejection of the Special Leave Petition gives a finality to an order of the High Court inasmuch as the same accused cannot file more then one Special Leave Petition
74 But in rare and exceptional cases this Court has exercised power under Article 32 of the Constitution so that there should not he miscarriage of justice and to avoid a direct conflict and confrontation between two orders of this Court
In the case of Harbans Singh vs State of U P   two accused persons had been sentenced to death by a common judgment
Special Leave Petition filed on behalf of one of the accused persons was dismissed
So far the other accused who had also been sentenced to death
is concerned his Special Leave Petition was entertained on question of sentence
Ultimately his death sentence was commuted to imprisonment for life
The other accused person whose Special Leave petition had been dismissed filed it petition under Article 32
His death sentence was also commuted by the Supreme Court
In that connection it was said Since Kashmira Singh s death sentence was commuted by this Court
it would be unjust to confirm the death sentence imposed upon the petitioner
That will involve the Court as well as the authorities concerned in the violation of rudimentary norms governing the administration of justice  In the well known case of AR Antulay vs RS Nayak
AIR 1988 SC 153 1
it was pointed Out that the Supreme Court is not Powerless to correct its error affairs Court is satisfied that if such power is not exercised it will lead to manifest injustice because no man can suffer for the mistake of the Court
Again in the case of Pyare Singh vs State of Madhya Pradesh 1992 Supp
3 SCC 45 this Court in exercise of power under Article 136 of the constitution while altering the convictions and reducing the sentences of the four out of six accused persons who had filed Special leave petitions before this Court
extended the same benefit and relief to other two accused persons who had not even filed any Special Leave petition against their convictions and sentences because this court felt that if the same benefit of alteration of conviction and modification in sentence is not given to other two convicted accused persons
it will lead to gross injustice
75 The mere rejection of the Special Leave Petition of co accused persons cannot seal the fate of the appeals of the appellants which have been entertained after leave having been granted by this Court
The appellants to whom leave has been granted can urge all questions within the frame work of Article 136 of the Constitution for consideration by this Court and a relief to which such appellants may be entitled cannot be denied to them merely on the ground that Special Leave Petition in respect of co accused persons with more or less similar charges evidence and convictions has already been rejected
On materials on record the prosecution has not been able to prove and establish hit appellants had the common object or shared the common intention to cause the murder of the victim
From the evidence of the prosecution itself it appears that the flour mill of the deceased and the residential unit of the accused persons being adjacent to each other suddenly a fight took place in which the appellant Satbir gave a blow by the back side wooden part of the Pharsa which caused one of the two injuries on the head of the deceased
It cannot be held that appellant Satbir had an intention to cause the death of the victim
In the circumstances of the case
It can he said that he had only knowledge that such blow may cause an injury resulting in the death of the victim
Accordingly he should have been convicted under Section 304 Part 11 of the Penal Code
So far appellant Gulbir is concerned according to the prosecution case he was carrying a stick and he is alleged to have given a stick blow to the deceased on a non vital part of  the body
In this background according to us he can he held to have committed the offence on under Section 325 of the Penal code
As already pointed out according to the prosecution case itself the appellant Hari Singh who was aged about 60 years at the time of the occurrence is said to have given a stick lathi blow to the informant PW 16
tie is not alleged to have given any blow to the deceased
Once it is held that different accused persons neither had any common object nor any common intention which they shared together to commit an offence under Section 302 or alike the appellant Hari Singh has to he held guilty for an offence only under Section 323 of the Penal Code
In the result the conviction of the appellants under Section 302 read with Section 149 of the Penal Code is set aside
The conviction under Sections 148 and 323 read with 149 is also set aside
The appellant Satbir is convicted for an offence under 76 Section 304 Part 11 and is sentenced to undergo rigorous imprisonment for seven years
The appellant Gulbir is convicted for an offence under Section 325 of the Penal Code and is sentenced to undergo rigorous imprisonment for three years
So far the appellant Hari Singh is Concerned he is convicted for an offence under Section 323 of the Penal Code and is sentence to the period of imprisonment already under gone
Accordingly the appeals are allowed in part to the extent indicated above
N V K Appeal allowed


Summary:
The respondent assessee was a private limited company trading in tractors and earth moving equipment
During the relevant the assessee pain commission on sales in addition to salary to its directors at a prescribed percentage of the sales effected by the assessee
The Income Tax Officer treated the commission on sales as perquisites  and disallowed the same applying section 40 a v for the year 1971 72 and section 40 A 5 for the assessment year 1972 73
Which are the concerned assessment years herein
On appeal the Appellate Assistant Commissioner held that commission on sales cannot betreated as perquisites
The Tribunal dismissed the Revenue s appeal
The question before this court was whether commission on sales paid in cash falls within the four corners of section 40 a v Section 40 A 5
Dismissing the appeal this court
HELD 1
Regarding Section 40 1 v 40 A 5 as a whole the cash payment of the nature concerned in this case does not fall within any of the situationsclauses contemplated by sub section 5
92 D Payment of a certain cash amount by way of commission on sales directly to an employee cannot be said to fall with the words where the assessee incurs an expenditure which results directly or indi 87 rectly in Section 40 A 5
92 F Nor can such a payment fall within a provision which speaks of an expenditure or allowance in respect of any assets of the assessee used by the employee DE
92 F