iminal Appeal No 95 of 1961
Appeal by special leave from the judgment and order dated February 15 1961 of the Allahabad High Court in Criminal Appeal No 1597 of 1960
D section Tewatia and K B Mehta for the appellants
O P Rana and C P Lal for the respondents
August 29 1963
The judgment of the Court was delivered by HIDAYATULLAH J
This is an appeal by special leave against the judgment of the High Court of Allahabad in Criminal Appeal No 1597 of 1960 decided on February 15 1961
The appellants are eight in number and they have been convicted under section 325 read with section 149 of the Indian Penal Code and sentenced to three years rigorous imprisonment
They have also been convicted variously under sections 147  148 Indian Penal Code and sentenced to smaller terms of imprisonment which need not be mentioned as those sentences are made to run concurrently with the above sentence
They were originally charged under section 302 read with section 149 Indian Penal Code for the murder of one Tikam on January 24 1960 at about noon in village Nandgaon Police Station Barsana District Mathura
The Session Judge Mathura did not think that a case of murder was made out and convicted them of the lesser offence
Their appeal to the High Court was dismis sed and the conviction and sentences were maintained
There was yet another trial at which these eight persons and four others were tried under section 307149 Indian Penal Code for causing hurt to one Puran with such intention and under such circumstances that if by that act they had caused his death they would have been guilty of murder and also under sections 147  148 of the Penal Code for being members of an unlawful assembly the common object of which was an attempt on Puran s life
The learned Sessions judge Mathura held in the second case that the injuries sustained by Puran warranted an 675 offence under section 323 Indian Penal Code
The accused and Puran compounded that offence and all the accused were acquitted
The Sessions judge however convicted 11 out of 12 accused under sections 147  148 Indian Penal Code and awarded different sentences according to the weapons possessed by them
One Koka was acquitted because his plea that he was blind from birth was accepted
The 11 accused in the second case appealed to the High Court and were acquitted of the charge of being members of an unlawful assembly
That Judgment of the High Court was delivered on January 31 1961 in Criminal Appeal No 1598 of 1960 fifteen days before the confirmation of the conviction and sentences of the eight appellants in this appeal
The facts of the case may now be given
There was enmity between Tikam deceased and the appellants and on January 24 1960 just about noon time Tikam was sitting at the shop of a blacksmith in village Nandgaon
Dulli and Nathi who were examined as P Ws 2  3 were sitting near him
The appellants who were armed with Ballams a Pharsa and Lathis arrived on the spot and on seeing Tikam started to assault him
Tikam was severely injured and fell in a ditch adjacent to the road but even after he fell in it the assault was continued by the appellants
He died the same day about five hours later
After assaulting Tikam these appellants decided to ransack his house and started towards it
On the way they were met by the other four accused and this brought their number to twelve
While they were going to the house of Tikam they saw Puran and decided to beat him
Puran was assaulted and the second case arose out of the assault on him
The learned magistrate who committed the accused to stand their trial before the Court of Sessions framed a common charge in respect of the two incidents but the Sessions judge amended the charge and divided it into two charges namely one connected with the attack on Tikam and the other connected with the attack on Puran
 He also separated the two trials on the two charges
As stated already lie convicted the eight appellants in respect of their assault on Tikam and the same appellants with three others in respect of their assault on Puran
676 The appeal in the second case was heard first and was allowed by the High Court and the 11 appellants in that appeal including the eight before us were ordered to be acquitted
It was contended before us by Mr Tewatia that Mr Justice Sharma who delivered the judgment impugned before us did not allow the appellants a chance to reply to the arguments on behalf of the State and thus denied them a fair hearing
This fact was mentioned in the petition for certificate in the High Court and has been repeated in the petition for special leave
Mr Justice Sharma had proceeded to deliver judgment as soon as the arguments were over and the judgment was delivered by him on two consecutive days in the presence of the appellants and their counsel
If any such right had been denied to the appellants they should have brought the matter immediately to the notice of the learned Judge and he would have rectified it
It appears that the appellants were hoping for an acquittal in view of the prior acquittal by the learned judge in the companion case and realised too late that their appeal was not accepted
It is for this reason that they do not appear to have raised this issue before the learned Judge when they asked him to certify the appeal and his Order does not show that they made a grievance that the hearing was not fair
In our opinion this point cannot be considered because though
it was mentioned in the petition for certificate it was apparently not pressed before Mr Justice Sharma
The next contention of the appellants is that the prior acquittal in the second case operates as a bar to the conviction in the present case and the High Court ought to have given the appellants the benefit of the prior ac quittal
Reliance in this connection is placed upon a de cision of the Privy Council in a case from Malaya State reported in Sambasivam vs Public ProsecutorFederation of Malaya1 and particularly the following passage from the judgment of Lord Mac Dermott The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence
at p 479
677 To that is must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication
The maximum Res judicata pro veritate accipitur is no less applicable to criminal than to civil proceedings
Here the appellant having been acquitted at the first trial on the charge of having ammunition in his possession the prosecution was bound to accept the correctness of that verdict and wasprecluded from taking anystep to challenge it at the second trial
And the ap pellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence
That it was not conclusive of his innocence on the firearm charge is plain but it undoubtedly reduced in some degree the weight of the case against him for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other
 The above passage was cited with approval by this Court in Pritam Singh vs State of Punjab1
The two cited cases were considered and distinguished by this Court in Mohinder Singh vs State of Punjab2 and Pritam Singh s case was again distinguished in Gurcharen Singh  anr
vs State of Punjab1
As pointed out in Mohinder Singh vs State of Punjab2 the case of the Privy Council involved a confession by an accused in which he admited possession of a firearm and some ammunition which were both offences under the relative law of Malaya State
He was convicted on the basis of that statement on two counts but on appeal was acquitted in respect of the count relating to the possession of ammunition and a fresh trial was ordered in respect of the count relating to the possession of the firearm
In the second trial the confession was again relied upon and he was convicted
The Privy Council set aside the conviction because the confession was incapable of being divided into two parts so as to make separate confessions about the 1 AIR 1956 SC 415
2 Cr A No 140 of 1961 decided on 31 7 63 Unreported
3 678 possession of firearm and about the possession of am munition
Their Lordships held that the confession which was indivisible could not be used at all in view of the acquittal recorded earlier on the other count
In Pritam Singh s case1 the accused made a statement leading to the recovery of a firearm with which he was alleged to have shot one of the victims
He was prosecuted for possession of the firearm and was acquitted but the evidence of the possession of the firearm was used in the murder charge
This was held to be not permissible
As explained in Mohinder Singh s case2 the acquittal in respect of the possession of firearm affected the admissibility of the same evidence in connection with the murder case because the firearm could not at the same time be possessed as well as not possessed by the accussed
The acquittal under the Arms Act being proper affected the evidence of possession in the murder case
In Mohinder Singh s case2 as well as in Gurcharan s3 case Pritam s1 case was distinguished because in those cases the acquittal under the Arms Act was later than the conviction on the substantive charge
There is nothing in common between the present appeal and the two cases relied upon by the appellants
In this case there is no doubt a prior acquittal but on a charge which was quite different from and independent of the charge in the present case
The assault on Tikam was over when the unlawful assembly formed its now common object namely the assault on Puran
The acquittal proceeded mainly because Puran compounded the offence under section 323 and the High Court did not feel impressed by the evidence about the remaining charges The charges on which that acquittal took place had nothing whatever to do with the charges on which there is conviction in the present appeal
A plea of autrefois acquit which is statutorily recognised in India under section 403 of the Code of Criminal Procedure arises when a person is tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made un 1 AIR 1956 section C 415
2 Cr A No 140 of 1961 decided on 31 7 63 unreported
3 679 der section 236 or for which he might have been convicted under section 237
Section 236 provides for a situation where it is doubtful what offence has been committed
When a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute that section permits that the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of such offences
Section 237 enables the Court to convict an accused charged with one offence for a different offence where the facts show that a different offence has been committed
Neither of these provisions is applicable to the present facts because the two offences were distinct and spaced slightly by time and place
The trials were separate as the two incidents were viewed as distinct transactions
Even if the two incidents could be viewed as connected so as to form parts of one transaction it is obvious that the offences were distinct and required different charges
The assault on Tikam in fulfilment of the common object of the unlawful assembly was over when the unlawful assembly proceeded to the house of Tikam to loot it
The new common object to beat Puran was formed at a time when the common object in respect of Tikam had been fully worked out and even if the two incidents could be taken to be connected by unity of time and place which they were not the offences were dis tinct and required separate charges
The learned Sessions judge was right in breaking up the single charge framed by the magistrate and ordering separate trials
In this view the prior acquittal cannot create a bar in respect of the conviction herein reached
It was contended by Mr Tewatia that the earlier judgment involved almost the same evidence and the reasoning of the learned judge in Puran s case destroys the prosecution case in the present appeal
He attempted to use the earlier judgment to establish this point
In our opinion he cannot be allowed to rely upon the reasoning in the earlier judgment proceeding as it did upon evidence which was separately recorded and separately 680 considered
The eye witnesses in this case are five in number while in the other case there were only two but that apart the earlier judgment can only be relevant if it fulfils the conditions laid down by the Indian Evidence Act in sections 40 43
The earlier judgment is no doubt admissible to show the parties and the decision but it is not admissible for the purpose of relying upon the appreciation of evidence
Since the bar under section 403 Criminal Procedure Code did not operate the earlier judgment is not relevant for the interpretation of evidence in the present case
Mr Tewatia attempted to argue on the facts of this case but we did not permit him to do so because this Court in the absence of special circumstances does not review for the third time evidence which has been accepted in the High Court and the Court below
No such circumstance has been pointed out to us to make us depart from the settled practice
The appeal therefore fails and is dismissed
Appeal dismissed


Summary:
The eight appellants variously armed attacked one T  and as a result of the assault T  died
These appellants then proceeded to loot the house of T  and on the way met four others who joined them
They then came across one P  and assaulted him
There was a small gap of time and the places of assault were different
The magistrate framed a single charge but the Session Judge framed two charges namely one connected with the attack on T  and the other connected with the attack on P 
He also separated the trials on the two charges
The Sessions judge convicted the appellants in both cases
The appeal in the second case ie the case relating to assault on P  was heard first by the High Court and the appellants were acquitted of the charges of being members of an unlawful assembly
Later the appeal connected with the assault on T  was heard by the High Court and in that appeal their convictions and sentences were confirmed
The present appeal arises out of the convictions and sentences passed by the High Court
The appellants contended that the prior acquittal in the second case operated as a bar to the conviction in the present case
The appellants relied on a decision of the Privy Council namely Sarnbasivam vs Public Prosecutor Federation of Malaya and of this Court in Pritam Singh vs State of Punjab
Held i There was nothing in common between the present appeal and the aforesaid two cases relied upon by the appellants
In this case the assault on T  was over when the unlawful assembly formed its new common object namely the assault on P 
ii A plea of autrefois acquit which is statutorily recognised in India under section 403 of the Code of Criminal Procedure arose when a person is tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted under section 237
The prior acquittal in the other case did not operate as a bar to the conviction in the present case as the charge in the other case was quite different from and independent of the charge in the present case and sections 236 and 237 of Code of Criminal Procedure were not applicable to the present facts because the two offences were distinct
Sambasivam vs Public Prosecutor Federation of Malaya   Pritam Singh vs State of Punjab AIR 1956 SC 415 Gurcharan Singh vs State of Punjab and 674 Mohinder Singh vs State of Punjab Cr
A No 140 of 1961 decided on 31 7 63 explained
iii This court in the absence of special circumstances does not review for the third time evidence which has been accepted in the High Court and the trial court