Holding

In the absence of a proved common object, Sukhbir Singh’s act constitutes culpable homicide not amounting to murder, covered by Exception 4 of Section 300 IPC and punishable under Section 304 IPC.

Summary

The case involved Sukhbir Singh, who was convicted of murder (Section 302 IPC) along with eight co‑accused for a fatal assault that arose from a sudden quarrel over mud splashed on him. The prosecution alleged that all nine formed an unlawful assembly with a common object to kill the deceased, invoking Section 149 IPC. The High Court held that no common object existed and that Sukhbir’s act was not cruel or unusual, thereby entitling him to the benefit of Exception 4 of Section 300 IPC, reducing the offence to culpable homicide not amounting to murder (Section 304 IPC). The State appealed, arguing that the common object was proved and that the High Court erred in its findings. The Supreme Court, exercising its special leave jurisdiction, affirmed the High Court’s view that the prosecution failed to establish a common object and that the incident was a sudden fight in the heat of passion, qualifying for Exception 4. Consequently, Sukhbir’s conviction under Section 302 was set aside and substituted with a conviction under Section 304, with a sentence of ten years’ rigorous imprisonment and a fine; the other appeal was dismissed.

Issues considered

The prosecution proved the existence of a common object among the accused to attract liability under Section 149 IPC.
Whether Sukhbir Singh is liable for murder under Section 302 IPC or can avail the benefit of Exception 4 of Section 300 IPC, reducing the offence to culpable homicide not amounting to murder.
Whether the High Court's findings on the absence of a common object are perverse or erroneous, justifying interference by the Supreme Court.
Whether the Supreme Court may re‑appreciate evidence under Article 136 in a special leave petition.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Constitution of Indias. Article 136
Indian Penal Code, 1860s. 141, s. 148, s. 149, s. 300(4), s. 302, s. 304(Part I), s. 307, s. 323, s. 324, s. 326, s. 452

Subjects

Section 149 IPCcommon objectunlawful assemblyException 4 Section 300culpable homicide not amounting to murderArticle 136special leave jurisdictionreappreciation of evidencemurderHaryana

Judgment

A
SUKHBIR SINGH
v.
STATE OF HARYANA

FEBRUARY 20, 2002
B
[R.P. SETHI AND K.G. BALAKRISHNAN, JJ.]

Penal Code, 1860:

C Section 300, Exception 4--Benefit ofException-Entitlement of-Absence
of existence of cor.imon object-Accused person is proved to have committed
culpa1~lt1 l:omiclde without pre-meditation In a certain fight in heat ofpassion
upon a sudden quarrel-Acts not cruel and of unusual manner-Held, in such
a situation accused entitled to ben:tfit under Exception 4 of Section 300.
D Sections 302 and J49--Existeiice ofcommon object of unlawful assembly
amongst accured j;:H";svns-Findings of High Court regarding sharing of
com/11,!HI object-Evidence of witnesses-No enmity between parties-Time
gap t'etwee11 quarrel andfight was few minutes-Trial Court on the basis of
avide~ce proved by the P'f)!BCution that accused persons shared a common
E object conYicr~'tl the accused persons-However, High Court held that all
per1cms did not share common object-On appeal, held prosecution could not
specifically refer to any of the objects for which accused alleged to have
formed ulllawjbl assembly-Hence, findings of High Court cannot be held to
be Mally improbable.

F Constitution of India, I 950-Article 136-.Speclal leave jurisdiction-
Review ofevidence for third time-Scope of-Held, unless there is some si!rlaua
infin~ity or grave failure ofjustice, Supreme Court normally refrains from re-
appr~ciating the matter.

According to the prosecution case, there was an nltcrcation between the
G nppdlant a11d son ofone 'L' over a trivul issue. 'L' intervenm c11d cnvulepri
to the appelbmt. Thereafter appellant went away declaring thllt ho would teach
u lesson. After some time appellant along with other accused person come
ut the spot nrmed with weapons and fight ensued. Appellant gave blows with
bhala on the chest of 'L' and other accused persons accompanied him. In the
H fight the son, wife, father and brother of 'L' also received injuries and 'L'
1152
SUKHBIR SINGH v. STATE OF HARYANA 1153
..
d!:d. Fm WllS lodged nnd nfter investigation nppelhlnt 1md the llCCused persocs A
were committed for trillL Appellnnt contended thllt he lllong with two other
llCCllsed persons cnllsed injuries to tile compleinnnt p:irty nnd others in s:lf
defecce. However, remnining eccused persons denied their pnrticipntion and
stilted thllt they hod been fnlsely imp!icnted. Trinl Court on being sntisfied
thnt the occurrence hnd tnken pince in which llll the nccused pnrticip:ited, B
convicted them under Section 302 relld with Section 149 of the Penal Code.
However, High Court held thnt nil the nccused persons did not share common
object and thus were not liable to be convicted for commission of the main
offence with the nid of Section 149 IPC. Hence these cross appeals.

Appellant contended thllt llS the occurrence hnd tnken place without C
p~meditation, inn sudden fight in the beet of passion upon n sudden quarre~
nppelllmt is entitled to the benefit of Exception 4 of Section 300 of the Code.
It is further contended thnt the finding of the High Court thnt the nppellant
hlls ncted in 11 cruel or unusul!I manner cannot be sustained nfter it is held
that the nccused did not hnve common object because the injuries inflicted
on the deceased were neither cruel nor of unusual manner. D
Appellant-state contended that the High Court was not justified in
disturbing the finding of the trial court that all the accused shared the common
object and holding that the prosecution had failed to prove the sharing of the
common object of all the accused persons. It was suggested that the manner
in which the accused came to the spot armed with deadly weapons and the E
nature of the injuries inflicted upon the persons of the deceased and other
injured persons demonstrated in unequivocal terms that the common object
of the unlawful assembly was to comm:t the offences for which they were
charged.
F
Disposing of the appeals, the Court

HELD : 1. In view of the facts and circumstances of the case, in the
absence of the existence of common object appellant is proved to have
committed the offence of culpable homicide without pre-meditation in a
sudden fight in the heat of passion upon a sudden quarrel and did not act in G
a cruel or unusual manner and thus his case is covered by Exception 4 of
Section 300 IPC which is punishable under Section 304 (Part I) of the IPC.
(1166-D-E)

2. The findings of the High Court regarding the non-existence of the
common object cllnllot be held to be totnlly improbable perticulnrly in the H
1154 SUPREME COURT REPORTS [2002] I S.C.R.

A absence of 11 positive finding in that behalf by the trial court. It was not satisri:d
that the finding returned by the High Court with respect to the version of
the prosecution Wlls not at all probable or that conclusions were based upon
only on surmises and conjectures or inadmissible evidence. Thus there does
not 11ppenr to be any justification to set llSide the judgment of the High Court
B in so f11r llS it holds the non-existence of common object amongst the accused
persons and the appeal filed by the State is liable to be dismissro on this ground
alone. (1160-G; 1162-8-D)

3.1. On facts and circumstances of the case, the prosecution did not
succeed in proving the existence of common object amongst the 11ccused
C persons to attract tho provision of Section 149 IPC. It appears that after
altercation over the splashing of mud on his person and receivine two slapt
on his rece from the complainant-party, appellant declared to tench the
complainant party, a lesson and went home. Immedilltely, thereafter he along
with others came to the spot llnd cs held by the High Court wanted to remove
the obstructions ceas:d In the flow of water. As the common object of the
D assembly is not discernible, it can, at the most be held that appellant Intended
to couse the fatal below to the deceased and the other accused 11ccompanled
him for the purposes of removin3 tho obstruction or at the most for te11ching
a lesson to deceased and others. At no point of time any of the accused persons
threatened or otherwise reflected their intention to commit the murder of the
E decet1sed. Merely because the other 11ccused persons were 11ccompanying him
when the fatal blows were caused by appellant to the deceased Cllnnot prove
the existence of the common object specifically in the absence of any evidence
of the prosecution lb that behalf. 11162-D-E; 1163-E-Gl

3.l. The High Court, on appreciation of evidence, has rightly found that
F the common object of the accused persons, If any, was not to accuse the death
of the deceased and such an intention could be attributed only to cppellant
The prosecution evidence probabilise the version of the accused that tho
occurrence was sudden and unanticipated. The occurrence, including the
quarrel and the causing of fatal blows to the complainant-party, 1111 took place
G within such a narrow compass which renders the story of the prosecution
highly improbnble. 11164-A-Cl

4.1. In the instant case, concededly, there was no enmity between the
parties and there is no allegation of the prosecution that before the occurrence,
the appellant nnd others had pre-meditated. The quarrel appeared to be
H sudden on account of heat of passion and the time gap between the quarrel
SUKHBIR SINGH v. STATE OF HARYANA 1155
11nd the fight is stllted to be few minutes only. It is, therefore, prob11ble th11t A
there wcs no sufficient l11pse of time between the qu11rrel 11nd the fight which
meiins th11t the occurrence was "sudden" within the meaning of Exception 4
ofSectio111300 IPC. (1165-B, C, F,)

4.2. In the cbsence of the existence of common object, the 11ppell11nt
ccnnot be held responsible for the other Injuries caused to the penon ofthe B
deceased. He is proved to have inflicted two blows on the person of the
deceased which were sufficient in the ordinary course of nature to cause his
death. The infliction of the injuries and their nature proves the intention of
the appellant but causing of such two injuries cannot be termed to be either
• in a cruel or unusual manner. All fatal injuries resulting in death cannot be C
termed as cruel or unusual for the purposes of not availing the benefit of
Exemption 4 of Section 300 IPC. After the injuries were inflicted and the
injured had fallen down, the appellant is not shown to h11ve inflicted 11ny other
injury upon his person when he was in a helpless position. It is proved that in
the heat of passion upon a sudden quarrel followed by a fight, the accused
who was armed with Bhala caused injuries at random and thus did not act D
in a cruel or unusual manner. (1165-G-H; 1166-A-Bl

Virender v. State (NCT) of Delhi, IV (2000) CCR 266 SC, distinguished.

5. It is now well established that this Court does not, by special leave,
convert itself i111to a Court to review evidence for a third time. However, where E
the High Court is shown to have failed in appreciating the true effect and
material change in the version given by the witnesses, in such a situation it
would not be right for this Court to affirm such a decision when it occasions
a failure of justice. The power under Article 136 of the Constitution of India,
is no doubt, extraordinary in amplitude and this Court goes into action only F
to avert miscarriage of justice if the existence of perversity is shown in the
impugned judgment. Unless some serious infirmity or grave failure of justice
is shown, this Court normally refrains from re-appreciating the matter on
appeal by special leave. The findings of the High Court have to be judged by
the yardstick of reason to ascertain whether such findings were erroneous,
-. perverse and resulted in miscarriage of justice. If the conclusions of the courts G
below can be supported by acceptable evidence, this Court will not exercise
its overriding powers to interfere with such a decision. If two views of an
occurrence are possible the view taken by one of the courts which is favourable
to accused should be given credence. (1160-G-H; 1161-A-C)

Ramniklal Gokaldas Oza v. State ofGujarat, (1976) 1 SCC 6; Duli Chand H
1156 SUPREME COURT REPORTS [2002] I S.C.R.

A Delhi Admn., (1975) 4 SCC 649 ond Ramanbhai Barabhai Patel and Ors. v. State
o/Gujarat, (2000) 1 SCC 358, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
650 of 1992.

B From the Judgment and Order dated 14.2.1992 of the Punjab and
Haryana High Court in Crl. A.P. No. 220-DB of 1989.

WITH

Crl. A. No. 257 of 2002.
c U.R. Lalit, Annam D.N. Rao, Rajiv K. Garg, J.P. Dhanda, Ms. Raj Rani
Dhanda, D.S. Nagar, K.P. Singh for Ranbir Singh Yadav, Sudhir Kulshreshtha,
S.S. Khanduja, Yash Pal Dhingra and S. Srinivasan for the appearing parties.

The Judgment of the Court was delivered by
D
SETHI, J. Appellant Sukhbir Singh (in Cr!. A. No. 650 of 1992) and
8 other accused, persons were arrested in FIR No. 166 dated 22.9.1986 of the
Police Station Ganaur and after investigation charged for the offences
punishable under Sections 302, 307, 326, 324, 323, 148 and 452 read with
E Section 149 of the Indian Penal Code by the Additional Sessions Judge,
Sonepat. After completion of the trial, appellant Sukhbir Singh was convicted
under Section 302 !PC and sentenced to imprisonment for life besides paying
a fine of Rs. 1000. The other accused persons were convicted under Section
302 read with Section 149 and sentenced to imprisonment for life besides
paying a fine of Rs. 1000 each. All the accused persons were also convicted
F under Sections 326/149 and sentenced to three years Rigorous Imprisonment
and fine of Rs. 500 each. Upon conviction under Section 148 !PC, the
respondents were sentenced to undergo Rigorous Imprisonment for one year
and upon conviction under Sections 324/149 !PC to undergo Rigorous
Imprisonment for one year each. They were also convicted under Sections
G 323/149 and sentenced to six moths Rigorous Imprisonment. All the substantive
sentences were directed to run concurrently. The appeals filed by the accused \'
persons were disposed of vide the judgment impugned in these appeals by
which the conviction and sentence of Sukhbir Singh, appellant under Section
302 !PC was upheld. The conviction and sentence of all the other accused
persons under Sections 302/149 was, however, set aside. Their convictions
H and sentences under Sections 326, 323, 324 with the aid of Section 149 !PC
-
SUKHBIRSINGHv. STATEOFHARYANA [SETHJ,J.] 1157
was also set aside. Detention already suffered by accused Pala, Ram Chander, A
Behari, Baljit, Kidara, Raj, Darya and Tani was considered as sufficient
sentence for their respective convictions and for their individual acts under
Sections 324 and 323 of the IPC. Pala, accused was further convicted under
Section 326 of the IPC and sentenced to undergo three years Rigorous
Imprisonment besides paying a fine of Rs. SOO. The Court found that the said B
accused had already undergone the sentence awarded.

Not satisfied with his conviction and sentence. Accw:ed, Sukhbir Singh
has filed Criminal Appeal No. 650of1992 whereas the State ofHaryana has
filed SLP against the acquittal of the rest of the accused persons. Leave has
been granted in the SLP and as the respondents are represented, no separate C
notices have been issued to them. As accused Ram Chander died after the
judgment of the appellate court, he has not been impleaded as a party-
respondent in the SLP filed by the State. As Sukhbir Singh convict-accused-
appellant has wrongly been added a party-respondent in the appeal filed by
the State, his name is deleted from the array of the respondents therein.
D
As the facts of the case and the question of law is common in both the
appeals, they are being disposed of by this common judgment.

The case of the prosecution, as disclosed by Guiab Singh (PW! 0) in his
report lodged in the police station, is that on 22nd September, 1986 it had E
rained in Village Tiwari. At about 5-5.15 p.m. when the rain had not
completely stopped and it was still drizzling, Guiab Singh (PWIO), brother
of the deceased, had come at his brother's residence where they were smoking
Hukka and chatting. Ram Niwas, son ofLachhman (deceased) was sweeping
the street in front of his house with a broom and that some mud splashes
stuck Sukhbir Singh at a time when he was passing in the street. Sukhbir F
Singh felt offended and is alleged to have abused Ram Niwas. When Sukhbir
Singh and Ram Niwas were abusing each other, Lachhman separated them
and gave two slaps to Sukhbir Singh. Sukhbir Singh went away declaring
that a lesson would be taught to them. After sometime all the 9 accused
persons came at the spot. Sukhbir Singh, Behari and Ram Chander accused G
were carrying Bhalas, accused Pala, Tara and Baljit were carrying Gandasas
and accused Kedara, Darya and Raj were carrying Jailwas. Sukhbir Singh
challenged Lachhman to come out so that a lesson could be taught to him.
When Lachhman proceeded towards the door of his house saying that the
matter should not be aggravated and as soon as he reached the door of his
house, eccused Sukhbir Singh gave two thrust blows with his bhala on the H
1158 SUPREME COURT REPORTS [2002] I S.C.R.

A upper right portion of his chest. Lachhman fell down whereafter accused
Ram Chander caught hold the legs of Lachhman and dragged him out in the
street. Accused Behari gave a bhala blow on, the left side of the chest of
Lachhman. When Murti, wife of Lachhman tried to rescue her husband,
accused Tara dealt a blow with gandasa which she warded of on her hand.
Accused Pala and Baljit also gave two Gandasa blows each to Lachhman. By
B that time Jagdev, Kitab Singh and Azad Singh had also arrived at the spot.
Ram Niwas, son of Lachhman was given a spear blow on the right side of
his chest by Ram Chander while accused Darya gave blow with Jailwa
lathiwise on his head. When Prem Raj, father of the deceased Lachhman and
his brother Bikram tried to rescue Lachhman, accused Pala hurled a gandasa
C blow on the head of Perna which was warded of on his left hand. Accused
Kidara gave two blows with jailwa on the head of Perna. Accused Raj gave
three jailwa blows lathiwise to Bikram on his right hand. Accused Pala gave
two gandasa blows on the head of Guiab Singh while Accused Baljit gave a
gandasa blow on his left foot. Kitab Singh, Azad Singh and Jagdev Singh
(PWs) then pushed the accused towards their houses. All the injured persons
D were removed to the Primary Health Centre, Ganaur. Lachhman injured
succumbed to the injuries and the other injured persons were given medical
treatment. As condition of Ram Niwas was stated to be serious, he w d,
referred to Civil Hospital, Sonepat for treatment where Dr. Budh Ram (PW7
examined him and further referred him for treatment to Medical Colleg'
E Hospital, Rohtak. All the accused were arrested by the police on 25th
September, 1986. They made disclosure statements, in consequence of which
Bhalas, Gandasas and Jailwas were recovered. After completion of th.:
investigation all the accused were committed for trial before the Court of
Additional Sessions Judge, Sonepat. To prove its case, the prosecution
examined 17 witnesses besides the formal witnesses being the police officials.
F The reports of Forensic Science Labouratory Exhs. PR and PS were also
tendered in evidence. Out of 17 witnesses Guiab Singh, Ram Niwas, Jagdev
Singh and Azad Singh were stated to be eye-witnesses to the occurrence.

In his statement recorded under· Section 313 Cr. P.C. Sukhbir Singh,
G appellant, stated that the complainant-party had placed earth in the street in
front of their house and thereby blocked the flow of the rainy water. When
he was removing the blockage to facilitate the flow of water, Lachhman
(deceased), Guiab Singh, Bikram, Prem Raj and Ram Niwas came there and
restrained him from removing the earth. When he was insisting to remove the
blockage, accused Behari and Pala also came in the street. The accused
H persons were attacked by the complaintant-party. Sukhbir Singh, along with
SUKHBIRSINGHv. STATE OF HARYANA[SETHI,J.) 1159
two other accused persons, also caused injuries to the complainant-party in A
their self-defence. In their statements accused Behari and Pala supported the
version of Accused Sukhbir Singh but the remaining accus')d persons denied
their presence or participation in the occurrence and maintained that they had
been falsely implicated being relations of Accused Sukhbir and Behari.
Accused Tara set up the plea of alibi contending that he remained in the J)
factory till 5.30 p.m. on the day of occurrence. The accused persons also
examined Dr. Bhupesh Chaudhary (DWI) ..s a defence witness to prove the
injuries on the person of accused Pala, Sukhbir Singh and Behari.

Assailing the acquittal of the accused by the High Court vide judgment
impugned, Mr. J.P. Dhanda, Advocate submitted that the High Court C
committed a mistake of law by ignoring the statements of the eye-witnesses,
namely, Guiab Singh (PWIO), Ram Niwas (PWI I), Jagdev Singh (PWl2)
and Azad Singh (PWl3). He further contended that the prosecution had proved,
beyond doubt, that all the accused shared the common object in furtherance
of which they caused the death of Lachhman (deceased) and inflicted injuries
' on the PWs and Smt. Murti, wife of the deceased. It is contended that in view D
of the conviction by the learned Additional Sessions Judge of the aforesaid
respondents for the commission of offence under Section 302 read with Section
I 49 IPC, the High Court was not justified in disturbing such a finding and
holding that the prosecution had failed to prove the sharing of the common
object of all the accused persons. It was suggested that the manner in which E
the accused came on the spot armed with deadly weapons and the nature of
the injuries inflicted upon the person of the deceased and other injured persons
demonstrated in unequivocal terms that the common object of the unlawful
assembly was to commit the offences for which they were charged.

We have perused the judgment of the trial court and found that no F
finding regarding the existence of a common object amongst the accused was

- returned. The trial court convicted all the accused persons on being satisfied
that the occurrence had taken place in which all the accused participated and
that as they stood already charged under Sections 302/149 IPC, they were
liable to be convicted for the commission of the offence with the aid of G
Section 149 IPC. The High Court, for the first time, examined the who.le
evidence to come to a conclusion that all the accused persons did not share
common object and thus were not liable to be convicted for the commission
of the main offence with the aid of Section 149 IPC. Facing this situation, the
learned counsel appearing for the appellant-State contended that the evidence
led by the prosecution and the attending circumstances of the case proved the H
1160 SUPREME COURT REPORTS [2002] I S.C.R.

A existence of the common object. The argument, if accepted, can also
probabilies the said version of the occurrence but does not totally negative
the probable conclusions arrived at by the High Court. In i:;s judgment the
High Court found that there was no previous ill-will or enmity between the
parties. The occurrence had taken place only on a trivial issue when Sukhbir
Singh got splashes of mud while Ram Niwas was sweeping the street. The
B conclusion of the High Court "consequently it appears that the possibility of
the incident having taken place over the removal of earth from the street by
Sukhbir accused in order to clear the flow of water is more probable", cannot
be completely ruled out. Such a case was projected by the aforesaid appellant
by putting suggestions to the prosecution witnesses and in his own statement
C recorded under Section 313 of the Cr. P.C. The High Court farther held that,
"the possibility cannot be ruled out that Sukhbir accused had himself reacted
to the situation of Lachhman deceased having given him slaps and wanted to
teach him a lesson after picking up a spear from his nearby house. The
version of Guiab Singh and Ram Niwas eye-witnesses that Sukhbir accused
D mustered help of all the other eight accused and returned to the spot along J
with them variously armed is not acceptable ..................". It was then held
that, "On the other hand the possibility of all the accused except Sukhbir
having individually reacted to the situation and came to the rescue of Sukhbir
on hearing altercation between him on the one side and Lachhman deceased
and Ram Niwas on the other cannot be ruled out especially when the perusal
E of rough site plan Ex.PZ prepared by Sub Inspector Kewal Ram and the
scaled plan Ex.PX prepared by Chandgi Ram PW9 shows that the houses of
Prem Raj and Bikram injured witnesses are located far of from the spot."
Analysing the statements of prosecution witnesses, the coL,rt concluded: "If
that is so then it cannot be said by any stretch of imagination that all the
accused had formed an unlawful assembly with the common object of killing
F Lachhman deceased or causing injuries to the other witn~sses". The High
Court thereafter examined the role played by each of the accused persons and
held them responsible for their individual acts for which they were convicted
and sentenced vide the impugned judgment. The Court hz.d also found that
accused Sukhbir Singh, Pala, Behari had suffered injuries <.t the hands of the
-
G complainant-party and not at the hands of the co-accused. Guiab Singh (PWIO)
and Ram Niwas (PW\ 1) injured witnesses were held to have suppressed the
genesis of the occurrence by not disclosing true facts. In our opinion, the
findings of the High Court regarding the non existence of the common object
cannot be held to be totally improbable particularly in the absence of a
positive finding in that behalf by the trial court.
H
SUKHBIRSINGHv. STATEOFHARYANA [SETHl,J.] 1161
It is now well established that this Court does not, by special leave, A
convert itself into a cQUrt to review evidence for a third time. However,
where the High Court is shown to have failed in appreciating the true effect
and material ch1111ge in the version given by the witnesses, in such a situation
it would not be right for this Court to atl1nn such a decision when it occasions
a failure of justice. The Jiower under Article 136 of the Constitution of India B
is, no doubt, extraordinary in amplitude and this Court goes into action only
to avert miscarriage of justice if the existence of perversity is shown in the
impugned judgment. Unless some serious infirmity or grave failure of justice
is shown, this Court normally refrains from re-appreciating the matter on
appeal by special leave. The findings of the High Court have to be judged
by the yardstick of reason to ascertain whether such findings were erroneous, C
perverse and resulted in miscarriage of justice. If the conclusions of the
courts below can be supported by acceptable evidence, the Supreme Court
will not exercise its overriding powers to interfere with such a decision. If
two views of an occurrence are possible the view taken by one of the courts
which is favourable to accused should be given credence. This Court in
Ramanik/al Gokaldas Oza v. State of Gujarat, (1976] I SCC 6 observed: D

"It is a wholesome rule evolved by this Court, which has been
consistently followed, that in a criminal case, while hearing an appeal
by special leave, this Court should not ordinarily embark upon a
reappreciation of the evidence, when both the Sessions Court and the E
High Court have agreed in their appreciation of the evidence and
arrived at concurrent findings of fact. It must be remembered that this
Court is not a regular court of appeal which an accused may approach
as of right in criminal cases. It is an extraordinary jurisdiction which
this Court exercises when it entertains an appeal by special leave and
this jurisdiction, by its very nature, is exercisable only when this F
Court is satisfied that it is necessary to interfere in order to prevent
grave or serious miscarriage of justice. Mere errors in appreciation of
the evidence are not enough to attract this invigilatory jurisdiction.
Or else, this Court would be converted into a regular court of appeal
where every judgment of the High Court in a criminal case would be
liable to be scrutinised for its correctness. This is not the function of G
this Court."
' In Duli Chand v. Delhi Admn.. (1975] 4 SCC 649 it was held :

"We have had occasion to say before and we may emphasise it once
again, thllt this Court is not a regulcr court of appeal to which every H
'
.)

I 162 SUPREME COURT REPORTS [2002] I S.CR.

A judgment of the High Court in criminal case may be brought up for
scrutinising its correctness. It is not the practice of this Court to ·
reappreciate the evidence for the purpose of examining whether the
finding of fact concurrently arrived at by the High Court and the
subordinate courts is correct or not. It is only in rare and exceptional
cases where there is some manifest illegality or grave and serious
B miscarriage of justice that this Court would interfere with such finding
of fact."

The same view was followed by this Court in Ramanbhai Barabhai Patel &
Ors. v. State of Gujarat, [2000] 1 SCC 358.

c Learned counsel appearing for the appellant-State was not in a position
to satisfy us that the finding returned by the High Court with respect to the
version of the prosecution was not at all probable or that a conclusions were
based upon only on surmises and conjectures or inadmissible evidence.

D In view of the settled position of law, as noticed by us, there does not
appear to be any justification to set aside the judgment of the High Court in
so far as it holds the non-existence of common object amongst the accused
persons and the appeal filed by the State is liable to be dismissed on this
ground alone.

E In the facts and circumstances of the case we are also of the opinion
that the prosecution did not succeed in proving the existence of common
object amongst the accused persons to attract the provisions of Section 149
IPC. An accused is vicariously guilty of the offence committed by other
accused persons only if he is proved to be a member of an unlawful assembly
sharing its common object. There is no dispute to the legal provision that
F once the existence of common object of unlawful assembly is proved, each
member of such an assembly shall be liable for the main offence
notwithstanding his actual participation in the commission of the offence. It
is not necessary that each of the accused, forming the unlawful assembly,
must have committed the offence with his own hands.
G Unlawful assembly has been defined under Section 141 of the Indian
Penal Code as under :

"141. Unlawful assembly.-An assembly of five or more persons is
designated as "unlawful assembly", if the common object of the
persons composing that assembly is-
H
SUKHBIR SINGH v. STATE OF HARY ANA [SETHI, J.) 1163
First.-To overawe by criminal force, or show of criminal force, the A
Central or any State Government or Parliament or the Legislature of
any State, or any other public servant in the exercise of the lawful
power of such public servant; or

Second-To resist the execution of any law, or of any legal process;
or B
Third-To commit any mischief or criminal trespass, or other offence;
or

Fourth-By means of criminal force, or show of criminal force, to

•
any person to take or obtain possession of any property, or to deprive
any person of the enjoyment of a right of way, or of the use of water
c
or other incorporeal right of which he is in possession or enjoyment,
or to enforce any right or supposed right; or

Fifth-By means of criminal force, or show of criminal force, to
compel any person to do what he is not legally bound to do, or to D
omit to do what he is legally entitled to do.

Explanation-An assembly which was not unlawful when it assembled,
may subsequently become an unlawful assembly."

The prosecution in the instant case could not specifically refer to any
E
of the objects for which the accused are alleged to have fonned the assembly.
It appears, from the circumstances of the case, that after altercation over the
splashing of mud on his person and receiving two slaps on his face from the
complainant-party, Sukhbir Singh declared to teach the complainant-party, a
lesson and went home. Immediately thereafter he alongwith others came on
, the spot and as held by the High Court wanted to remove the obstructions F
caused in the flow of water. As the common object of the assembly is not
discernible, it can, at the most, be held that Sukhbir Singh intended to cause

-- the fatal blow to the deceased and the other accused accompanied him for the
purposes of removing the obstruction or at the most for teaching lesson to
Lachhman and other. At no point of time any of the accused persons threatened
G
or otherwise reflected their intention to commit the murder of the deceased.
Merely because the other accused persons were accompanying him when the
J fatal blows were caused by Sukhbir Singh to the deceased cannot prove the
existence of the common object specifically in the absence of any evidence
of the prosecution in that behalf. The members of the unlawful assembly can
be held liable under Section 149 of the !PC if it is shown that they knew H
1164 SUPREME COURT REPORTS [2002] I S.C.R.

A before hand that the offence actually committed was likely to ·,e committed
in prosecution of the common object. It is true that the common object does
not require prior concert and a common meeting of mind before the attack.
It can develop even on spot but the sharing of such an objt:ct by all the
accused must be shown to be in existence at any time before the actual
B occurrence.

The High Court, on appreciation of evidence, has rightly found that the
common object of the accused persons, if any, was not to cause the death of
the deceased and such an intention could be attributed only to appellant,
Sukhbir Singh. The prosecution evidence probabilise the version of the accused
C that the occurrence was sudden and unanticipated. The occurre:1ce, including
the quarrel and the causing of fatal blows to the complainant-party, all took •
place within such a narrow compass which renders the story of the prosecution
highly improbable. In the facts and circumstances of the case, it cannot be
said that the findings returned by the High Court were completel'y improbable.
The appeal filed by the State is not sustainable even on merits.
D
Appearing for the appellant Sukhbir Singh, Shir U.R. Lalit, learned
Senior Counsel submitted that even if the occurrence is admitted to have
taken place in the manner found by the High Court, his client cannot be held
guilty for the commission of offence punishable under Section 302 IPC. It is
E argued that as the occurrence had taken place without pre-meditation, in a
sudden fight in the heat of passion upon a sudden quarrel, the said appellant
is entitled to the benefit of Exception 4 of Section 300 of th•= Indian Penal
Code. It is further contended that the finding of the High Court that the
appellant has acted in a cruel or unusual manner cannot be sustained after it
is held that the accused did not have common object because in that case the
F appellant Sukhbir Singh is shown to have inflicted two blows on the body of
the deceased which are neither cruel nor unusual to deprive him the benefit

G
of aforesaid exception.

To avail the benefit of Exception 4, the defence is required to probabilise
that the offence was committed without pre-meditation in a sudden fight in
-
the heat of passion upon sudden quarre I and the offender hacl not taken any
undue advantage and the offender had not acted in a cruel or unusual manner.
The exception is based upon the principle that in the absence of pre-meditation
and on account of total deprivation of self-control but on account of heat of
passion, the offence was committed which, normally a man of sober urges
H would not resort to. Sudden fight, though not defined under the Act, implies
SUKHBIRSINGH v. STATEOFHARYANA [SETHl,J.) l 165
mutual provocation. It has been held by courts that a fight is not per se A
palliating circumstance and only unpre-meditated fight is such. The time gap
between quarrel and the fight is an important consideration to decide the
applicability of the incident. If there intervenes a sufficient time for passion
to subside, giving the accused time to come to normalcy and the fight takes
place thereafter, the killing would be murder but if the time gap is not
sufficient, the accused may be held entitled to the benefit of this exception. B
In the instant case, concededly, there was no enmity between the parties
and there is no allegation of the prosecution that before the occurrence, the
appellant and others had pre-meditated. As noticed earlier, occurrence took
place when Sukhblr Singh got mud splashes on account of sweeping of the C
street by Ram Niwas and a quarrel ensued. The deceased gave slaps to the
appellant for no fault of his. The quarrel appeared to be sudden on account
of heat of passion. The accused went home and came armed in the company
of others though without telling them his intention to commit the ultimate
crime of murder. Tho time gap between the quarrel and the fight is stated to
be few minutes only. Accordingly to Guiab Singh (PWIO) when Sukhbir D
Singh was passing in the street and some mud got splashed on his clothes,
he abused Ram Niwas. They both grappled with each other whereupon
Lai:hhman (deceased) intervened and separated them. Accused Sukhbir had
abused Lachhman who gave him two slaps. The said accused mereafter went
to his hotne oiler stating that he would teach him a lesson for the slaps which E
had been given to him. After some time he, along with other accused persons,
came at the spot and the fight took place. His own house is at a different
place. There is a street in between his house and the house of Lachhman
(deceased). On the northern side of his house, the house of the appellant is
situated. Similarly Ram Ni was (PW 11) has stated that after the quarrel the
accused went towards his house and within a few minutes he came back with F
other accused persons. It is, therefore, probable that there was no sufficient
lapse of time between the quarrel and the fight which means that the occurrence
was "sudden" within the meaning of Exception 4 of Section 300 IPC.

The High Court has also found that the occurrence had taken place G
upon a sudden quarrel but as the appellant was found to have acted in a cruel
and unusual manner, he was not given the benefit of such exception. For
• holding him to have acted in a cruel and unusual manner, the High Court
relied upon the number of injuries and their location on the body of the
deceased. In the absence of the existence of common object, the appellant
cannot be held responsible for the other injuries caused to the person of the H
1166 SUPREME COURT REPORTS [2002] I S.C.R.

A deceased. He is proved to have inflicted two blows on the persons of the
deceased which were sufficient in the ordinary course of nature to cause his
death. The infliction of the injuries and their nature proves the intention of
the appellant but causing of such two injuries cannot be termed to be either
in a cruel or unusual manner. All fatal injuries resulting in death cannot be
termed as cruel or unusual for the purposes of not availing the benefit of
B Exception 4 of Section 300 IPC. After the injuries were inflicted and the
injured had fallen down, the appellant is not shown to have inflicted any
other injury upon his pers·on when he was in a helpless position. It is proved
that in the heat of passion upon a sudden quarrel followed by a fight, the
accused who was armed with Shala caused injuries at random and thus did
C not act in a cruel or unusual manner.
•
To support the case of the prosecution, learned counsel for the State of
Haryana relied upon Virender v. State (NCI) of Delhi, IV [2000] CCR 266
(SC). We have perused the aforesaid judgment and find it totally
distinguishable because in that case nothing was shown to !he court that the
D occurrence had taken place in a sudden fight and in the heat of passion.

Keeping in view the facts and circumstances of the case, we are of the
opinion that in the absence of the existence of common object Sukhbir Singh
is proved to have committed the offence of culpable homicide without pre-
meditation in a sudden fight in the heat of passion upon a sudden quarrel and
E did not act in a cruel or unusual manner and his case is covered by Exception
4 of Section 300 IPC which is punishable under Section 304 (Part I) of the
IPC. The findings of the courts below holding the aforesaid appellant guilty
of offence of murder punishable under Section 302 IPC is set aside and he
is held guilty for the commission of offence of ..:ulpable homicide not
p amounting to murder punishable under Section 304 (Part I) of the IPC and
sentenced to undergo Rigorous Imprisonment for IO years and to pay a fine
of Rs. 5000. In default of payment of time, he shall undergo further Rigorous
Imprisonment for one year.

The Criminal Appeal No. 257 of2002 is dismissed and Criminal Appeal
G No. 650 of 1992 is partly allowed. The Bail Bonds of appellant Sukhbir stand
cancelled and is directed to be taken into custody forthwith for serving out
the remaining part of his sentence.

N.J. Criminal Appeal No. 650192 partly allowed.
Criminal Appeal No. 257/2002 dismissed.