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TMI Blog1993 (4) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 be held to have committed the offence only 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. He 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 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 Section 148 and 323 read with 149 is also set aside. The appellant Satbir is convicted fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir 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 2.30 P.M. the deceased and PW 16 went to their flour mill to bring back their bullocks and fodder car. Suresh and Satbir with Pharsas, Hari Singh with a Ballam, Virinder, Vijender and Gulbir with sticks came there. Suresh abused the deceased and PW 16 saying that they 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. PW 16 raised an alarm. Virinder, Vijender and Gulbir gave stick blows to the 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 PW 16. Thereafter an alarm was raised and accused persons fled away from the place of occurrence. 4. The victim was taken to B.K. Hospital, Faridabad on a tractor. From there he was referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 can. x 10 cm." On the person of PW 16 only few superficial injuries were found. 5. On 12th October, 1982 the aforesaid Dr. O.P. Sethi PW 1 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 person 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 1 1/2" x l/2" over back fore-arm). X-ray 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 1" x1/8" placed at the top of head 5" above the pinna of right ear. X-ray was advised for skull in superior view. 3. A partially healed injury 3/4" x1/8" at the left half of head 2" behind the interior hair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e First Information Report PW 16, the informant, did not state that the injuries 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 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 Pharsa. 7. But merely on the ground that PW 16, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 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 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. 11. 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 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 merge in the Order of this Court, as is the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. But in rare and exceptional cases this Court has exercised power under Article 32 of the Constitution so that there should not be this carriage of justice and to avoid a direct conflict and confrontation between two orders of this Court. 14. In the case of Harbans Singh v. State of U.P. [AIR 1982 SC 849] 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 a 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been convicted under Section 304, Part-11, of the Penal Code. 18. 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 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 object nor any common intention which they 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 Section 148 and 323 read with 149 is also set aside. The appellant Satbir is convicted for an offence under Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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