HARi SINGH ETC.

STATE OF HARYANA

.APRIL 13, 1993

[DR. A.S. ANAND AND N.P. SINGH, JJ.] B

Constitution of India 1950:

Article 136-Does not confer right of appeal-Only right to apply .,,.... for special leave to appeal. c -

-.-

Indian Penal code:

Sections. 148, 149, 302, 304 Part II and 323-Different accused when held to have neither common object or common intention-Held 0 guilty of offence under Section 323.

Practice and Procedure :

SLP of Co-accused rejected-Effect of SLP 011 other accused-Doctrine of stare decisis-Applicability of

The three appellants in the two appeals along with 3 others, were tried for having committed murder. One of the accued beinga minor, his trial was separated so that the same could be conducted by the

Children Court.

The case of the prosecution was that on the night intervening 6th and 7th October, 1982 the deceased and PW16. who was the first cousin of the deceased, were returning after witnessing Ram Leela. At that time the aforesaid 5 accused were also returningfrom the show G Jtnd it was alleged that they teased some girls of the village who had _

also gone to see the Ram Leela, and that the dect>.::ised and PW16' objected to this behaviour of the accused persons. On this the accused. persons abused them which was followed by exchange of abuses from both the sides. PW13 intervened and pacified them. Next day at about 2.30 p.m. the deceased and Pw16 went to their flour mill to bring back H

A their bullocks and fodder cart .. Tub of the accused with Pharsas, one with a Ballam, and three others with sticks came there. One of the accused abused the deceased and Pw16 saying that they wuld teach them a lesson for abusing them the previous night. Having said .so one of the accused gave a pharsa blow from the blunt side on the head of the deceased. The other gave a pharsa blow on the head of the B deceased. PW 16 raised an alarm and the remaining accused gave blow to PW16. PW16 also got a blow of Ballam from the blunt side on his head. Thereafter an alarm was raised and all the accused persons fled away from the place of occurrence.

C The victim was taken to the local Hospital on a tractor and thereafter he was referred to A.I.I.M.S., New Delhi, where PWl examined him and also sent information to the police post at about 4.15 p.ni. The victim reached the A.I.I.M.S. at about 7.25 p.m. where he was examined. A.S.I., PWl 7 who had got the information about the occurrence went to the Institute and the statement was recorded.

D '- PW17 took up the investigation. The victim died in the Institute the next morning at 7 .00 a.m. The post-mortem examination was held by PW 15 on 8 th October, 1982 at 4.30 p.m. on 12th October~ 1982 PWI examined one of the accused Suresh under the orders of judicial Magistrate and he made a report regarding the injuries he had E received the duration of the time in respect of the injuries which he stated was 3 to 6 days.

The five accused were put up for trial, and the Session Judg, e convicted and sentenced all these accused for offences under Section F 302 read with 149, Sections 148 and 323 read with Section 149 to imprisonment for life. The High court having dismissed their appeals, the three appellants filed two appeals to this Court.

In , the appeals to this court it was contended on behalf of the appellants that on the materials on record the Courts below should G have come to the cohclusion that the prosecution had suppressed the real manner of occurrence and had disclosed a version of the occurence which cannot be accepted. It was pointed out that the accused-Suresh,

Vijender and Vi render were the sons of accused Hari Sing who was t:.- aged about 60 years, and that it was highly improbable on the part of H Hari Singh to join his sons for committing the murder of the deceased-

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HARISINGHv. STAIBOFHARYANA 63

Mange Ram who had protested about the behaviour of his sons. It was A submitted that in view of the admitted position that the residential unit, and the tube-well being 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 PW16. It was further submitted that in the First Information Report the name of accused Suresh was mentioned in connection with the previous B night's incident and that he and Satbir gave pharsa blo.ws on the head of the deceased, that PW16 modified his version of the FIR in court by saying that the injuries on the head of the victim were caused by the back side of the pharsa, and that this improvement was introduced after it was found during the post-mortem examination that injuries c had been caused by application of blunt force which was inconsistent with the case of assault on the head of the deceased by pharsa.

The State raised an objection that in view of the dismissal of the Special Leave Petitionofthetwo.accusednamely Sureshand Vijender D against whom similar allegatiott:.'lha'ft" been made, it was not open to this Court to entertain any plea on hehalf of the present 3 appellants because it will be deemed that while dismissing the special leave petition this Court had affirmed the findings recorded by the Trial court and the High Court in respect of the manner of occurrence and participation of the accused persons including the 3 appellants.

Allowing the appeals in part, and setting aside the convictions of the appellants under Section 302 read with Section 149 of the Penal Code; under Sections 148 and 323 read with Section 149; this court,

F HELD : I. Appellant-Satbir convicted under section 304 Part II and sentenced to undergo rigorous imprisonment for seven years.

Appellant Gulbir comicted for an offence under Section 325 Penal code and sentenced to undergo rigorous imprisonment for three years. Appellant Hari Singh convicted for n offence under Section 323 of the penal code and sentenced to the period of imprisonment. G already undergone. (75-H, 76-A-B)

2 (a). In the 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 coordinate Jurisdiction, should have consistent H

•A 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.(72-D-E)

B {b) Before any such principle is applied it must be held that the earlier order passed by this Court dismissing the Special Leave Petition of the co-accused amounts to a judgement or an affirmance of the findings of the High Court, about the manner of the occurrence, participation of the different accused persons and the nature of C offence committed by them. (72-F)

3. 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 ' D right to appeal, it confers only a right to apply for special leave to appeal, which taking all facts and circumstances into consideration may be granted or rejected. E\•en in a case where the 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. Similarl)•, when Special Leave Petition is entertained against E any final or interlocutory order this Court does not convert itself to a Court of appeal. (72-D-H)

Gian Cl!and v .. Kunjbelzarilal [1977] 3 SCC 317, referred to.

(76-E)

4. 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. (73-D) ·

5. The doctrine of precedent is not applicable to an order passed b)' this Court rejecting a Special Leave Petition. Any such order cannot be held to be stare decisis so that it is a binding on the Court.

(73-F)

6. Rejection of the Special Leave Petition gives a finality to an .

r r I

...

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HARi SINGH v. STA 1E OF HARY ANA 65

order of the High Court, inasmuc.h as the same accused cannot file A more than one Special Leave Petition. But in rare and exceptional . cases this Court has exercised power under Article 32 of the Constitution so that there should not be miscarriage of justice and to avoid a direct conflict and confrontation between two orders of this court •

(73-H, 74-A)

Harbans Singh v. State of U.P., AIR 1982 SC 849; Pyare Singh v ...

State of Madhya Pradesh, [1992] SUPP 3 sec 45 and (77-F) A.R.

Antulay v .. R.S. Nayak. AIR 1988 SC 1531, referred to. (78-C)

7. The mare rejection of the Special Leave Petition of co-accused C persons cannot seal the fate of the appeals of the appellants which have been entertained after leave having been granted by this Cowr, t. The appellants to whom leave has been granted can urge all questions within the framework of Article 136 of the Constitution for considerati01. by this Court and a relief to which such appellants may be D entitled cannot be denied to them merely on the ground that a Special Leave Petition in respect of co-accused persons with more or less similar charges, evidence and convictions has already been rejected.

(75-F_.G)

8. On the basis of the evidence of PW16, the informant, it cannot E be said that the accused persons had an intention to cause such injuries on the victim which ay result in his death. When they caused the injuries from the blunt side of the Pharsa it will have to be presumed that they had knowledge that those injuries can cause the

deat~ but there was no intention on their part to cause death. As such F the Trial Court and the High .Court should not have convicted the appellants under Section 302.read with Section 149. (71-G-H)

9. (a) On the materials on record in the instant case, the prosecutfon has not been able to prove and establish that the appellants had the common object or shared the common intention to cause the G 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 placein which the appellant Satbir gave a blow by the back side (wooden part) of the Pharsa, whih caused one of the two injuries on H

A the head of the deceased. It cannot be held that appellant Satbir had an intention to cause the death of the victim. In such circumstances it can be said that he had only knowledge that such blow may cause an injury resulting in the death of the victim. He shoul<J have, therefore, been convicted 'under Section 304, Part-II, of the Penal Code.

{75-C-E) B

{b) So far as 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, he can be held to have committed the offence only under C Section 325 of the Penal Code. {75-F)

{c) In regard to the a-ppellant-Hari Singh, he was aged about 60 years at the time of the occurrence and the prosecution case itself, is that he is said to have given a stick (lathi) blow to the informant PW16.

D He is not alleged to have given any blow to the deceased. He has, therefore, to be held guilty for an offence only under Section 323 of the Penal Code. {75~G)

CRIMINAL APPELL~ TE JURISDICTION: Criminal Appeal No. 698/85 with 59/86.

From the Judgment and Order dated 30.4.1985 of the }lunjab and Haryana High Court in Crl. A. No. 345-DB of 1984.

R.L. Kohli and Prem Malhotra for the Appellants in Crl. A. No.

F 698/85.

0.P~ Sharma RC. Gunbrele, K.R. Gupta, Mrs. Nanita Sharma, Vivek Sharma and. Kamaljeet Singh for the Appellant in Crl. A. -·o. 59/86.

K.C. Bajaj and Ms. lndu Malhotra (NP) for the Respondent.

The judgment of the Court was delivered by

N.P. SINGH.J One appeal is on behalf of Bari Singh and the other is on behalf of Satbir and Gulbir. They were put on trial along with H

J- HARi SINGH v. STA 1E OF HARYANA [N. P. SINGH J.] 67

Suresh, Vijender and Virender for having committed the murder of A Mange Ramon 7th October, 1982. Virinderbeing 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 B 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. c Special Leave Petition (Crimial) No.2160of1985 was filed on behalf of accused Hari Singh, Suresh and Vijender. On 23rd September, 1985 this Court granted spec; ial 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 D Gulbir on a separate Special Leave Petition filed on their behalf.

The case of the prosecution i.s that in the night intervening 6th and 7th October, 1982 Mange Ram (hereinafter referred to as "the de- ceased") and Ram Kishan PW16, who is the first cousin of the deceased, were returning after witnessing the Ram Leela. At that very E time Suresh, Satbir, Vijender, Virinder and Gulbir were also returning after the show. Near the baitlzak of Jit Ram, the accused persons teased some girls of the village who had also gone to see the Ram Leela. The deceased and PWI 6 objected to the bahaviour of the accused persons towards the girls of their own village. On this it is said that the accused F persons abused them which was followed by exchange of abuses from both the sides. Budhi PW 13 intervened and pacified them._N ext day at about 2.30 PM. the deceased and PW 16 wentto 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 andPW16 saying that they G would teach them a lesson for abusing them i.e. 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. PW16 raised an alarm, Virinder, Vijender and Gulbir gave stick blows to the ·. H

A deceased. It is further the case of the prosecution that when PW 16 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 pl_ace of occurrence.

B The victim was taken to B.K. Hospital, Faridabad on a tractor.

Fromthocehewa::.1eferredtoA.l.l.M.S., New Delhi, by Dr. O.P. Sethi PWl. pw1 aisr'sent information to the Police Post No.5, Faridabad, ataboui4.15 P.M. the victim reached the A.1.1.M.S. at about 7.25 P.M. where he was xamined. Raghbir Singh. A.SJ., PWl 7 who had got the C information about the occurrence at the Police Station Chhainsa at 5.35

P.M. the same evening from the Police Station, New Township, Faridabad, went to the Institute aforesaid and recorded the statement of PW16 at 8.30 P.M. which was forwarded. to the Police Station, Chhainsa, where a case was registered at 11.30 P.M. the same night PW 17 took up the investigation and visited the place of occurrence and D collected blood-stained earth. The victim died in the Institute the next morning at 7 .00 A. M. The postmortem examination was held by PW 15 on 8th October, 1982 at4.30 P.M. He found three stitched wounds, one on the right parietal region, second on the middle of the scalp and the third on the left parietal region. One out of three wounds, was an E 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 PWl 5 the injuries found on the deceased had been caused "by applicatiqn of blunt force" and were sufficient in F 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 PW15, the doctor, and he stated as follows:

"I have seen the alleged weapon of offence, Pharsa EX.P. l and the ante mortem injuries which are noted on the head canno.t 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 EX.P .1 is used from any ofits two sides (Between iron blade and tp.e two. iron projections referred above)

-i.

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HARi SINGH l'. STA lE OF HARYANA [N. P. SINGH J.]

even then head injuries mentioned above are not likely to cause.

At this stage another sealed parcel containing a Pharsa EX.P.2 opened at the instance of defence counsel. It was found containing a Pharsa Ex. P.2 I have been this Pharsa also. The distances between two projections holding iron blade with bamboos is about 11.5 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.l 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 PW 16 only few superficial injuries were found.

On 12th October, 1982 the aforesaid Dr. O.P. Sethi PWl of B.K.

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 , al1 over the wrist joint and lower half of left fore-arm. There were bluish mark of two bruises (abraised, each 1/2" x 1/2" 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.

2. A partially healed injury I" x 1/8" placed at the top of head 5" above the pinna of right ear. X-ray \\ ;1' advised for skull in superior view.

3. A partially healed injury 3/4" x 1/8" at 111, left half of head 2" behind the interior hair line. X-ray was also advised.

:' ~

4. A liniar injury having 3/4'' x 1/8" at right half of head., 1 1/2" behind interior hair line. X-ray skull was advised.

5. A vertical injury mark 2" x 1/2 at the left shin 5" 1/2 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 ha.s disclosed a version of the occurrence which cannot be accepted. It was D 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 committing 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 E and the fields of the_ accused persons are across the same road. 1l1e tubewell of accused Hari Singh is situated adjoining the mill where Hari Singh has also got the 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 F accused persons going to the flour mill of the deceased to assault the deceased and PW16. The accused persons and the deceased both having their flour mill and residential unit side by side, most probably clashed as a result df 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 G 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 corning 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 H by PW16 that accused Suresh and Satbir gave Pharsa blows on the

HARi SINGH v. STA TE OF HARYANA [N. P. SINGH J.}

7 I

head of the deceased. In the First Information Report PW16, the A informant, did not state that the injuries on the head on the head of the victim were caused by the back side of the P/iarsa. On behalf of the appellants, it was pointed out that this change was introduced after it was found during the post-mortem 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 Plzarsa. 8

But merely on the ground that PW16, 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 P//arsas blows on the head of the C deceased. Modified the same in court by saying that they gave one Pllarsa 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 D 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 Plzarsa on the head of the deceased. In all probabilities because of the f>revious night's incident, at about 2.30 P.M. a sudden fight took place, in which accused Suresh E and Satbir are alleged to have given blows from the bitck side of the P//arsa on the head of the deceased. PW I 5, the doctor, who held the postmortem examination, has stated that those injuries had been caused "by application ofbh.tnt force" and has emphaticaJJy repudiated . that injuries on the head of the deceased could have been caused by two F

P/zarsas Ex, P. l and P2 which had been seized and shown to him during the course of his examination. "Tue injuries from the back side of the Pharsa can be said to have been caused by "blunt force".

\ It has been ri2htly submitted that on basis of the evidence adduced

inluding.the evidence of PWI6, the informant, it cannot be said be G 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 H

72 SUPR"'ME COliR! REPORTS

(1993] 3 S.CR.

A High Court should nui havt! cunv_icted the appellants under,.Section 30~

read with Section 149. .-All

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

B Suresh and vijender against whoin 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 c 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.

Iritrue that system of the justice which is being administered IJy the Corirts;'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. ff.Courts express different opinions on the identical sets of facts or question of law while exercising the same jurisdiction, then instead of achieving E hannony in the judicial system, it will lead to judicial anarchy. But before any such principle is applied it must be held that the earlier order passed by this Court dismissing the Special Leave Petition of the co- .... accused amounts to a judgment or an affirrnness of the findings of the High court, about the manner of the occurrene. participation of the

F 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 ' G -"', appeal, it confers only a right to apply for special leave to appeal. 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 erge in the Order of this Court, ,,,- as is the case while exercising the appellate power. Similarly whei:i - H Special Leave Petition is entertained against any final or interlocutory )-

HARi SI:s'GH v. STA TE OF llARYA:\A I:\. P. Sl~GH J.] 73

order this court does not convert itself in a court of appeals. It was said A in the case of Gain clland v. Kunjbeharilal, [ 1977] 3 SCC 317 by Chandrachud, J (as he was then):.

"With regard to the first submission it may be pointed out that an application for special leave under Article 136 of the Constitution against a judgment or an order cannot be equated with the ordinary remedy ofappeal. 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 docs not come within the contemplation of appeal pending before the Court under Section 13 A (a)."

It is a basic principk of the administration ofjustice that like cases should be decided alike. It is a very sound rule and practice otherwise D on sainc question of law or same set of facts different persons approaching a Court can gel differt:nt 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 coaccust.:d with more or less similar charges has already been rejected by this court. although this Court is satisfied that either such accused E whose appeal is being heard is entitled lo 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. although the Court is satisfied on the c materials on record. then what was the purpose, while rejecting the " Special Leave Petition of the co-accused Suresh and Vijender, to gram

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, inasrriuch as the same accused cannot file more then one Special Leave Petition. ff

74 SUPREME COliRT REPORTS

[199313 S.C.R.

A But in rare and exceptional cases this Court has exercised power under Article 32 of the Constitution so that there should not be miscarriage of justice and to avoid a direct conflict and confrontation between two orders of this Court.

n In the case of Harhans Singh , .. State of U.P .. AIR 1982 SC 849. two accused persons had been sentenced to death hy a common judgment. Sped al Leave Petition filed on behalf of one of the accused persons was dismissed. So far the other accl!sed, who had also been sentenced to death. is concerned his Special Leave Petition was entertained on question of sentence. Ultimately his death sentence was C commuted to imprisonment for life. The other accused person whse

Special Leave petition had been dismissed, filed a petition under Article 32. His death sentence was also conunuted hy 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 scntt:nce imposed upon the petiti()ner. 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 -nown case of A.R. A11tulay 1. R.S. Nayak. AIR 1988 SC 1531. it was pointed out that the Supreme Court is not powerless to correct its error if this Court is satisfied that if such pmwr is not exercised it will lead to manifest injustice, because no man can suffer F for the mistake of the Court.

Again in the case of Pyare Sing/J 1. State of Mad/J)a Pradesh. ( 19921 Supp. 3 SCC 45. this Court in exercise of power unc.kr Article

l 36 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 I .eave Petition against their convictions and sentences because this Court felt that if the same benefit of alteration of conviction and modification in

sentence is 11ot given to other two convicted accused persons. it will H lead to gross injustice.

HAAI SINGH'' STATEOFHARYANA (N. P. SINGH J.) 75

The mere rejection of the Special Leave Petition of co-accused A .,_ 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 B 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 that appellants had the common object or shad the C 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 Pllarsa, which 0 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 'vk1im. In the circumstances of the case. It can be 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-II, 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 be held to have committed the offence only under Section 325 of the Penal Code. As already pointed out according F 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. He is not alleged to have given any blow to the deceased. Once it is held that different accused persons neither had any common ohjcct nor any common intention which they G shared together to commit an offence under Section 302 or alike, the appellant Hari Singh has to be 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 Satbiris convicted for an offence under H

A Section 304 Part II 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

8 Penal Code and is sentence to the period of imprisonment already undergone. Accordingly the appeals are allowed in part to the extent indicated above.

N.V.K.

Appeal allowed.