KHARKAN AND OTHERS versus THE STATE OF U.P.

Citation: [1964] 4 S.C.R. 673 · Decided: 29-08-1963 · Supreme Court of India · Bench: S.K. DAS · Disposal: Dismissed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

-
-
·l 
4 S.C.R. 
SUPREME COURT REPORTS 
673 
KHARKAN AND OTHERS 
ti. 
THE STATE OF U.P. 
(S. K. DAS, ACTING C.J., M. HIDAYATULLAH AND K. c. 
DAS GUPTA, JJ.) 
Crim£nal 
Procedure-Two incidents-Trial 
separate-Prior 
acquittal in one-If operates as bar to conviction in another case-
Code of Criminal Procedure, 1898 (Act V of 1898), ss. 403, 236, 
237. 
The eight appellants variously armed attacked one 'T' and as 
a result of the assault 'T' died. 
These appellants then proceed-
ed to loot the house of '1'' and on the way met four others who 
joined them. 
They then came across one 'P' and assaulted him. 
There was a small gap of time and the places of 
assault 
were different. 
The magistrate framed a single charge but 
the 
Session }' 1dge framed two charges namely one connected with the 
attack on 'T' and the other connected with the attack on 'P'. He 
also separated the trials on the two charges. 
The Sessions Judge 
convicted the appellants in both cases. The appeal in the second 
case £.e. the case relating to assault on 'P' was heard first by 
the 
High Court and the appellants \Vere acquitted of the charges 
of 
being members of an unlavvful assembly. Later the appeal connected 
with the assault,,. on 'T' was heard by the High Court and in 
that appeal their convictions and sentences were confirmed. 
The 
present appeal arises out of the convictions and sentences passed 
by the High Court. The appellants contended that the prior ac-
quittal in the second case operated as a bar to the conviction in 
the present case. 
The appellants relied on a decision of the Privy 
Council namely Sambasivam v. Public Prosecutor Federation 
of 
Malaya and of this Court in Pritan1 Singh v. State of Punjab. 
Held: (i) There was nothing in common between the present 
appeal and the aforesaid two cases relied upon by the appellants. 
In this case the assault on 'T' was over when the unlawful as-
sembly formed its ne\v comn1on object namely the assault on 'P'. 
(ii) A plea of autrefois acquit which is statutorily recognised 
in India under s. 403 of the Code of Criminal Procedure arose 
when a person is tried again for the same offence or on the same 
facts for any other offence for which a different charge from the 
one made against him might have been made under s. 236 or for 
whi.ch he might have .been convicted under s. 237. The prior acquit-
tal in the other case did not operate as a bar to the conviction in the 
present case as the charge in the other case \Vas quite different 
from and independent of the charge in the present case, and ss. 
236 and 237 of Code of Criminal Procedure were not applicable 
to the present facts because the two offences were distinct. 
Sambasivam v. Public Prosecutor Federation of Malaya, [ 1950] 
A.C. 458, Pntam Singh v. State of Puniab, A.l.R. 1956 S.C. 415, 
Gurcharan Singh v. State of Puniab, [1963] 3 S.C.R. 585 and 
1963 
August 29 
()74 
SUPREME COURT REPORTS 
[1964) 
1963 
Mohinder Singh v. State of Puniab, Cr. A. No. HO of 1961 deci-
ded on 31-7-63, explained. 
Kharkan and 
others 
v. 
The State 
of U.P. 
H idayatullah, J. 
(iii) This court, in the absence of special circumstances, docs 
not review for the third time evidence which has been accepted in 
the High Court and the trial court. 
CRIMINAL APPELLATE Ju&1smcTioN : Criminal Appeal 
No. 95 of 1%1. 
Appeal by special leave from the jucfgment and order 
dated February 15, 1%1, of the Allahabad High Court in 
Criminal Appeal No. 1597 of 1%0. 
D.S. Tewatia and K. B. Mehta, for the appellants. 
0. P. Rana and C. P. Lal, for the respondents. 
August 29, 1%3. The Judgment of the Court was de-
livered by 
HIDAYATULLAH J.-This is an appeal by special leave 
against the Judgment of the High Court of Allahabad 
in Criminal Appeal No. 1597 of 1%0 decided on February 
15, 1%1. The appellants are eight in number and they 
have been convicted under s. 325 read with s. 149 of the 
Indian Penal Code and sentenced to three years rigorous 
imprisonment. They have also been convicted variously 
under ss. 147 & 148, Indian Penal Code and sentenced to 
smaller terms of imprisonment which need not be men-
tioned as those sentences are made to run concurrently 
with the above sentence. They were originally charged un-
der s. 302 read with s. 149, Indian Penal Code for the mur-
der of one Tikam on January 24, 1%0 at about noon in vil-
lage Nandgaon Police Station Barsana District Mathura. 
The Session Judge, Mathura, did not think that a case 
of murder was m

Excerpt shown. Read the full judgment & AI analysis in Lexace.