Important Point
Where diametrically divergent versions without anything in common except that murdered person was same in such a case, two separate trials are to be conducted one after the other by the same court before the same Judge and judgment in both cases are to be to pronounced separately. Such a case cannot be brought under the umbrella of Section 233 Cr.P.C.

Headnote:Code of Criminal Procedure, 1973-Sections 223 and 319-Clubbing and consolidation of trial -Conditions precedent to-Persons should have been accused either of same offence or of different offences committed in course of same transaction-Test is whether they are so related to one another in point of purpose or of cause and effect.
       In clauses (a) and (d) of Section 223 the primary condition is that persons should have been accused either of the same offence or of different offences “committed in the course of the same transaction”. The expression advisedly used is “in the course of the same transaction”. That expression is not akin to saying “in respect of the same subject matter”. It is pertinent to point out that the same expression is employed in Section 220(1) of the Code also (corresponding to Section 235(1) of the old Code). (Para 11)
       For several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is commonality of purpose or design, where there is continuity of action, then all those persons involved can be accused of the same or different offences “committed in the course of the same transaction”. (Para 12)
       But if in one case the accused is alleged to have killed a person without any junction with the accused in the other case, then it cannot be treated as the same offence or even different offences “committed in the course of the same transaction”. If such two diametrically opposite versions are put to joint trial the confusion which it can cause in the trial would be incalculable. It would then be a mess and then there would be no scope for a fair trial. (Para 13)
       Where diametrically divergent versions without anything in common except that the murdered person was the same, in such cases the most appropriate procedure to be followed by a Sessions Judge should be two trials are separately conducted one after the other by the same court before the same judge and judgments in both cases are separately pronounced on the same day. No doubt the Sessions Judge should take care that he would confine his judgment in one case only to the evidence adduced in that particular case. If more than one Public Prosecutor are available at the same station it is advisable that the Public Prosecutor who prosecuted one case should avoid prosecuting the other case. (Para 16)
       In the instant case in respect of murder of one person in one episode two different persons were charged with two diametrically opposite version, one version by investigating agency in respect of one person and another version in respect of another person by private complaint. The trial Court conducted separate trial and convicted person charged by virtue of private complaint.
       Held : That the cases could not be brought under the umbrella of Section 233. The trial Court was correct in conducting two separate trials.
       (ii) Indian Penal Code, 1860-Section 302-Conviction-Legality of-Murder by gun shot-Investigation charging one person-Private complaint alleging another person was real offender-Two separate trials-Accused charged by police acquitted-Conviction of accused in private complaint on basis of witnesses of private complainant-Witnesses relatives of deceased-Alleged murder in day light at but stand -No independent witnesses examined-Allegation that police officials entered into criminal conspiracy to save real culprit-Not proved -Conviction could not be sustained -Conviction set aside.
       Held : To support the police version names of independent witnesses were cited in the challan but to support the private complainant’s version we have only the evidence of those who are admittedly ill disposed to the appellant’s (accused in private complaint) family. If the police version is the true story then it would be disastrous to convict the appellant for the murder of Om Prakash. The court should have been absolutely certain that the police version was false, fabricated and accentuated by sinister motive in order to dumb a thoroughly innocent teenager (Guria) (who was charged by investigating officer and was acquitted by the trial Court) to the very serious criminal charge of murder. At any rate, the court should have been absolutely certain that the police officials and the real culprits have entered into a criminal conspiracy to rescue the real murderer. Unless the court reaches such a degree of satisfaction a criminal court cannot afford to conclude that the prosecution instituted on private complaint has succeeded in proving beyond all reasonable doubt that it was this accused who had committed the murder of Om Prakash. Conviction was, therefore, set aside. (Para 24)

Judgment

Thomas, J.-Seldom would the courts have come across such a weird scenario as the present case has presented. In respect of one victim in one murder episode two diametrically divergent stories were put to test in two different trials before the same Sessions Court and both were prosecuted by the same Public Prosecutor. The Sessions Court rejected the story, which the police had propounded, after a full-fledged investigation, as untrue but the same trial Court approved the other divergent version as the true story. Resultantly the man whom the investigating agency found to be the real murderer was shown his escape route while the man whom the other side dubbed as the culprit stands convicted and sentenced to imprisonment for life.

2. The convicted person did not succeed in getting himself extricated from the murder charge even in appeal as the High Court confirmed his conviction and sentence. This court has once dismissed the appeal filed by the appellant by special leave (on 17.2.1997) but on a legal point, pertaining to the procedure to be followed in such two cases, this Court reopened it and annulled the said judgment of this court and put the appeal back for disposal afresh. The said legal point has been formulated by this Court as follows:

“The question of law which has arisen for determination rests in discovering the course to be steered by a Court of Session when two commitments are made before it pertaining to the same offence and pertaining to the same victim, one giving one version against one accused, and the other giving another against a different accused. In what manner should the Court of Session proceed when taking cognizance of the offence is the subject matter of debate in this appeal. Added thereto is the quest for fairness of trial and avoidance of prejudice to the accused.”

3. For dealing with the aforesaid legal point a brief sketch of the facts has to be stated. The backdrop of the murder (the subject matter of this case) is the following : The name of the person murdered in this case is Om Prakash. His father Harpat and appellant’s father Bagravat were primogenitors of the two different families which engaged in annihilating each other. In 1972 the said Harpat was murdered for which Bagravat (father of appellant) was indicted by police, and in 1978 Bagravat was murdered for which Harpat’s son Manphool was challaned by the police. Normally the retaliating cycle should have completed one circle of its rotation, but it seems to have continued to rotate.

4. On the afternoon of 11.1.1983 Om Prakash son of Harpat was shot dead at the bus stand of Bhuna (Fatehabad). He was removed in the injured condition to the hospital by his nephew (PW-4 Jagdish) and his uncle (PW-5 Laxmi Narain). The doctor (PW 1) examined him and pronounced him dead. PW-4 Jagdish then proceeded to the police station and launched the complaint accusing the present appellant Balbir and his brother Rajinder as the persons who shot the deceased. The police registered FIR on the strength of that complaint against the above two persons as accused. PW-7 Assistant Sub-Inspector of Police held the inquest on the dead body of Om Prakash on the same day.

5. During the investigation conducted by sub-Inspector Ganga Ram a volte-face happened when appellant was found to be not the culprit and instead one 19 year old youngster Guria son of Kirpa Ram was discovered to have shot at the deceased. The said Guria was arrested on 28.1.1983 and on the strength of a statement elicited from him a country made pistol, a used cartridge and a live cartridge were recovered from beneath the heap of fodder grain stalked in his house. Guria was finally charge-sheeted by the police and eventually that case was committed to the Court of Sessions.

6. PW-4 Jagdish complained to the Superintendent of Police that the investigation was not directed into the allegation against the appellant and his brother. As he did not get any response he filed a complain

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1999 Supreme(SC) 1246

Cases Referred (2)