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Chandra Bhal Vs. the State of U.P. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSupreme Court of India
Decided On
Judge
Reported in(1971)3SCC983
AppellantChandra Bhal
RespondentThe State of U.P.
Cases ReferredPiara Singh v. The State of Punjab
Excerpt:
...............vishwa nath. har narain, ganga ram, debi dayal, jagannath, bhagirath, sheo prakash, mouji lal and lauwa. lauwa ran and fell down in the chamaraonki-gali and died at the spot. the report proceeded to state that chandra bhal was moving in the village with his gun giving out a threat that any one who went to the police station would be killed. shri chari's contention is principally based on this report and according to him lauwa having also been killed in the course of the same transaction which, according to vishwa nath's report, was a continuous one, separate trials were improper and have in addition prejudiced the accused in his defence.4. it is true that the first information report does suggest that lauwa's death occurred as a result of gun shots fired during what appears on first.....
Judgment:

I.D. Dua, J.

1. In this appeal by special leave the appellant Chandra Bhal challenges his conviction under Section 302, I.P.C. for the murder of one Lauwa on the night between 19th and 20th March, 1964. He was tried in the court of the Additional Sessions Judge, Kanpur along with his brother Manuwa and his nephew Suresh. He was sentenced to imprisonment for life but his two co-accused who were charged under Section 302, I.P.C. read with Section 34, I.P.C. were acquitted by the trial Court. On appeal the High Court confirmed the conviction and the sentence. In this Court the only question canvassed before us by Shri Chari learned advocate for the appellant is that the transaction in which Lauwa was shot by the appellant included certain other incidents in which some other persons were also shot dead and wounded. The trials in respect of those other incidents were held separately and this, according to the learned advocate, has prejudiced the appellant in his trial for the alleged murder of Lauwa. The counsel in this connection emphasised that the appellant's acquittal in those cases on the plea of self-defence would also serve as conclusive proof of his plea of self defence in the present trial, It may, however, be said in fairness to the appellant's counsel that he did not invoke the principle of autrefois acquit underlying Section 403, Cr.P.C. which is now also embodied in Article 20(2) of the Constitution. No serious attempt was made before us to take us through the evidence in this case in order to sustain the plea of private defence on the existing record, and rightly so, because on appeal under Article 130 of the Constitution it is not practice of this Court to repress or re-evaluate evidence for considering the correctness of the conclusions of the High Court on questions of facts.

2. The first information report in this case was lodged by Viswa Nath, P.W.4, who seems to be the person with whom the trouble originated. According to this report Chandra Bhal, Manuwa and Suresh went to his house at 11.00 on the night between the 19th and 20th March 1964, Chandra Bhal armed with a gun and the other two with lathis. Addressing Vishwa Nath in an abusive language, Suresh chased him with a lathi injuring his left hand finger. On alarm having been raised by Vishwa Nath, the people of the village started coming to the spot. Seeing them, Chandra Bhal started firing at them. Vishwa Nath' son Har Narain alia Gange who also arrived at the scene was first gives a lathi blow by Manuwa and was later fired at by Chandra Bhal. Har Narain ran away but fell down at a little distance Chandra Bhal continued to move around firing his gun at random Gun allots also hit Raj Narain, son of Vishwa Nath. Har Narain, Ganga Ram, Debi Dayal, Jagannath, Bhagirath, Sheo Prakash, Mouji Lal and Lauwa. Lauwa ran and fell down in the chamaraonki-gali and died at the spot. The report proceeded to state that Chandra Bhal was moving in the village with his gun giving out a threat that any one who went to the police station would be killed. Shri Chari's contention is principally based on this report and according to him Lauwa having also been killed in the course of the same transaction which, according to Vishwa Nath's report, was a continuous one, separate trials were improper and have in addition prejudiced the accused in his defence.

4. It is true that the first information report does suggest that Lauwa's death occurred as a result of gun shots fired during what appears on first impression to be one transaction and originally the prosecution actually contemplated one trial on the basis of that report. But it seems that the prosecutor on fuller consideration thought that all the offences were not committed in the course of the same transaction and the accused also felt that one trial would give rise to confusion and would, therefore, be unfair to him. This is indicated by the order passed on November 0, 1904 by the learned Additional Sessions Judge. That order so far as relevant for our present purpose, reads:

According to the prosecution, all the offences do not appear to have been committed in the course of the same transaction nor do they appear to have been committed in furtherance of one common intention. From the prosecution story, as stated by the learned D. G. C. (District Government Counsel) it appears that originally the common intention of all the three accused was to beat or kill Vishwa Nath complainant against whom the accused have enmity. The accused came to the house of the complainant. There was exchange of hot words and the complainant was threatened with life. Suresh accused gave a lathi blow to the complainant whereupon he and other inmates of the house raised alarm which attracted Har Narain; Bhagirath and others The complainant ran where upon Chandra Bhal accused fired two gun shots which injured Har Narain, Bhagirath and Raj Narain. Manuwa accused gave a lathi blow to Har Narain after he had fallen down. The accused chased the complainant and when he reached near the house of Madari, he was challenged by the accused and threatened with life. The complainant did not stop with the result that Chandra Bhal again fired gun shots injuring Jagannath, Sheo Prakash and Maiku, Mahabir also became a victim of gun shots and subsequently expired. The complainant then fled away and it was at this state that the common intention of beating or killing Vishwa Nath came to an end inasmuch as Vishwa Nath complainant was out of scene at that state....

4. The other transaction stated when the accused proceeded further from the house of Madari....

When the accused proceeded further, they met Lauwa who chastised 'Chandra Bhal and told him that he had done sufficient mischief and now should stop and go back home, This again enraged Chandra Bhal who fired at Lauwa who collapsed then and there. For the murder of Lauwa, the other two accused, according to the own case of the prosecution had nothing to do.

It is conceded before me both on behalf of the State as well as on behalf of the defence that the case must be split up in three trials in any case, namely the first case should be in respect of Vishwa Nath being fired, the second in respect of murder of Lauwa and the third in respect of attempt to murder Sikru, Sheo Raj, Ganga Ram, Mauji Lal and Debi.

5. No doubt the first information report being on early record and the first version of the alleged criminal activity conveyed to the police officer with the object of putting the police in motion in order to investigate, is an important and valuable document. But it has also to be remembered that it is not a substantive piece of evidence and it can only be used for the purpose of corroborating or contradicting its maker. The. Statute does not provide that it must be made by an eye witness to the commission of the alleged offence or that it must give full and precise details. It is, therefore, not intended to be treated as the last word of the prosecution in the matter. It merely marks the beginning of the investigation into the reported offence and its value must accordingly depend on the circumstances of each case including the nature of the crime, the position of the informant and the opportunity he had of witnessing the whole or part of the commission of the alleged offence. Now, if this be the legal position then the contents of the first information report cannot serve as the sole and conclusive test for determining the question whether there should be one or several trials of the several offences disclosed in the report. The matter has to be determined on the basis of the result of the investigation in the light of the provisions of the Code of Criminal Procedure.

6. Turning to the provisions of the Code, Section 233 embodies the general mandatory rule providing for a separate charge for every distinct offence and for separate trial for every such charge. The broad object underlying the general rule seems to be to give to the, accused a notice of the precise accusation and to save him from being embarrassed in his defence by the confusion which is likely to result from lumping together in a single charge distinct offences and from combining several charges at one trial. There, are, however exceptions to this general rule and they are found in Sections 234, 235, 236 and 239. These exceptions embrace cases in which one trial for more than one offence is not considered likely to embarrass or prejudice the accused in his defence. The matter of joinder of charges is however, in the general discretion of the court and the principle consideration controlling the judicial exercise of his discretion should be to avoid embarrassment to the defence by joinder of charges. On the appellant's argument the only provision requiring consideration is Section 235(1) which lays down that if in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person then he may be charged with and tried at one trial for every such offencs. This exception, like the other exceptions merely permits a joint trial of more offences than one. It neither renders a joint trial imperative nor does it bar or prohibit separate trials. Sub-section (2) of Section 403 of the Code also provides that a person acquitted of convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235(1). No legal objection to the appellant's separate trial is sustainable and his counsel has advisedly not seriously pressed any before us.

7. The appellant, however, contended that he had been prejudiced by the separate trial inasmuch as his plea of private defence upheld in the others cases has not been properly appreciated in this case. It was also submitted that the decisions in the other cases upholding his plea of private defence should be held to be binding in this case on the basis of the issue-estoppel which is applicable to criminal trials and is accepted principal in India Separate trial on the charge for causing Lauwa's death, as already observed, is not contrary to law even if a joint trial of this offence along with the other offences were permissible. Let us see if a joint trial was permissible. That would depend on the question whether the present offence was committed in the course of the same transaction in which the other offences were committed. Now this matter was required to be considered by the trial Court at the beginning of the trial and it is not to be determined on the basis of the result of the trial. As already noticed this question was considered by the trial court on November 9, 1964 and separate trial of the present offence was conceded both by the prosecution and the accused. Nothing cogent was urged on behalf of the appellant to persuade us to hold that the view taken by the trial court was erroneous or that the concession made by the appellant was either wrong or misconceived or that it has in any way prejudiced the appellant In fact our attention was not drawn to any material on the record suggesting prejudice to the appellant as a result of his separate trial. So far as the plea of private defence is concerned it was clearly open to him to plead it and in fact he did plead that he had fired the fatal gunshot at Lauwa in the right exercise of the of private defence. The right of private defence in killing the other persons whose deaths were the subject matter of other trials had apparently little to do with the right of private defence in shooting down Lauwa. On the concurrent conclusions of the two courts below on the appreciation of evidence it is quite clear that Lauwa was killed at a considerable distance from the place of occurrence in the other trials and the present offence was not committed during the course of the same transaction in which the other offences were committed. On appeal under Article 136 of the Constitution it is not the practice of this Court to interfere with conclusions of fact and no special ground has been made out for departing from this settled practice.

8. This tikes us to the argument founded on the principle of issue-estoppel. This Court considered this aspect in Pritam Singh v. State of Punjab (1). In that case reference with approval was made to the following passage from the decision of the Privy Council in Sambasivam v. Federation of Malaya (2).

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 parson acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties 10 the adjudication.

The maxim 'res judicate pro veritate accipitur' is on 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 was procludcd from taking any steps to challenge it at the second trial.

This Court (Subba Rao J (as he then was) and Raghuber Dayal J.) felling bound by the decision in Pritam Singh's case (1), acquitted the accused in Banwari Godara v. State of Rajasthan (3) In Gurcharan Singh v. State of Punjab (4) the decision in psitam Singh's case (1) was approvingly referred to but was held inapplicable to that case with the following observation:

There is no doubt that if the order of acquittal under Section 19(f) had been pronounces before the judgment in the principal case was delivered then in the latter case the prosecution will not be entitled to contend that Gurcharan Singh was in illegal possession of the fire-arm. This position cannot be and is not disputed.

In Mohinder Singh v. Stale of Punjab (5) and in Kharkan v. The State of U.P. (6) the decision of the Privy Council and this Court's decision in Pritam Singh's case (1) were distinguished and in Kharkan's case it was observed as follows:

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 2 unlawful assembly formed its new 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.

The Court continued:

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 us 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 distinct 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.

In Manipur Administration v. Thokchom, Bir Singh (7) and again in Piara Singh v. The State of Punjab (8) this Court approvingly referred to the principle underlying the decision in Pritam Singh's case (1) but on facts that principle was held not to have been attracted. In England the Cour of Criminal Appeal in R.V. Conally (9) dealing with the submission as to 'issue-estoppel' without considering it necessary to decide whether it availed an accused person in that country, observed that for 'issue-estoppel' to arise there must have been distinctly raised and inevitably decided the same issue in the earlier proceeding between the same parties.

9. The rule underlying the above decisions does not help the appellant. First, there was no conjoint existence of proximity of time, community of intention or continuity of action between the act which caused Lauwa's in this case and the acts which were the subject of charges in the other cases, Secondly the order of acquittal in the other cases was made by the High Court on the same day on which the order in the present case was pronounced, that is, October 27, 1966. It, therefore cannot be said that the issue of private defence was tried on a former occasion precluding the reception of evidence in the present case which would disturb or upset finding in the other cases. And when the rule in question having been designed to preclude the reception of advance it is inappropriate to rely on it on special leave appeal in this Court. According to the decision in Kharkan's case(6) he judgments in the other cases produced in this Court are also not relevant as they do not fulfil the conditions laid in Section 40 to 43 of the Indian Evidence Act. The plea of private defence in the two cases cannot be said to give rise to or necessarily involve the same issue which require the same evidence for the purpose of proof. As already indicated, no attempt was made on behalf of the appellant to show that his conviction is otherwise legally unsustainable or that he was otherwise prejudiced in his defence. The appeal accordingly fails and is dismissed.


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