State by Public Prosecutor vs Sundararajan

N. Arumugham, J.—State has preferred this appeal u/s 378 of the Code of Criminal Procedure against the judgment of the Principal

Sessions Judge, Coimbatore, passed in Sessions Case No.18 of 1984 dated 24.3.1984 praying to set aside the order of acquittal of the

respondent herein for the offence u/s 302, I.P.C. and to convict him for having caused the murder of one Chinnasamy by stabbing him with knife at

about 2.30 P.M. on 20.10.1983.

Both the respondent and the deceased Chinnasamy were the residents of Athikuttai village. According to the prosecution at about 11.30 A.M.

on 20.10.1983 the dog belonging to the respondent had bitten one of the goats which were tied on the northern side of the house of the deceased

and on seeing the same P.W.4 Valliammal, a resident nearby, raised noise and on hearing her noise, P.W.s1 and P.W.2, the wife and the elder

brother of the deceased went and chased the dog and brought the injured goat. Then the deceased with P.W.2 went to the house of the

respondent-accused and accosted the mother of the accused who alone was present at that time and shouted over the act of the dog belonging to

the accused and further they had threatened that if something happens, they would be taken to task. While that being so, at about 1.30 P.M. on

that day, the respondent went to the house of Chinnasamy and questioned him about his attitude of threatening his mother and asked him whether

he could do so. At that time, he aimed to stab Chinnasamy with M.O.1 knife for which he took M.O.2 are canut palm stick and hit the respondent

on his head and left shoulder. There upon, by saying ""you be done away with"", the respondent stabbed the deceased on the left side of the chest

with M.O.1 knife and on his left shoulder also. The deceased placed his hand on the injury on the chest, at that time, the respondent transacted the

second stab on the left shoulder. This overtact was witnessed by P.Ws. 1 to 3 and one Kamalammal and then the respondent ran way with the

weapon of offence. After walking some distance of about ten feet the deceased took water from the tank there, he fell down and died. His clothes

became stained with blood.

Immediately P.W.1 went to the Peelamedu Police Station and gave report to P.W.14, Durai, Sub Inspector of Police, who registered the case

in Crime No.497 of 1983 against the respondent u/s 302 I.P.C. and sent the first information report to the Court as well as to higher officers.

P.W.15 Rajasekaran, Inspector of Police, was informed of the registration of the above case by P.W.14. Consequently P.W.15 reached the

Police Station, got the copy of the F.I.R. and took up investigation. He visited the scene of occurrence at about 4.30 p.m. prepared the

observation mahazar Ex.P.15, rough sketch relating to the topography of the scene of occurrence Ex.P.16 and arranged for the photographs of the

scene place and the dead body which were marked as M.O.s 4 and 5. He held the inquest over the dead body from 5.45 p.m. to 9.30 p.m. and

prepared inquest report Ex.P.17. He recovered M.O.8 blood stained earth and M.O.9 sample earth from the place of occurrence, from the place

of occurrence under the cover of mahazar Ex.P.18 as well as M.O.3, lungi from the dead body, M.O.10, blood stained earth, M.O.11 sample

earth and M.O.12, one plastic mug under the mahazar Ex.P.19. Then he sent the dead body through P.W.12 with a requisition Ex.P.6 to conduct

autopsy. P.W.9. Dr. Vadivelu, Professor of Forensic Medicine, Coimbatore Medical College Hospital on receiving the said requisition conducted

autopsy over the dead body of Chinnasamy at about 10.15 a.m. on 21.10.1983. He noticed blood stains over the front of both lower limbs, front

of abdomen, front of left upper limb and life side of the nose and bloodstained froth over both nostrils. He found the following ante-mortem injuries

on the persons of the dead body:

1) Stab injury measuring 2 cm x 1.5cm x 7 cms depth over the outer aspect of left side of chest 4 cm. away from the left nipple;

2) Another stab injury measuring 2 cm x 1.5 cm x muscle deep on the back of the left shoulder;

3) On dissection of injury No. 1, he found that it had passed upwards, backwards and inwards cutting the skin, muscles and entering into the left

side thoracic cavity, producing stab wounds to the pleura and left side of upper lobe of the left lung through and through and producing a stab

injury to the left side of pulmonary artery; and

4) On dissection of wound No. 2, he found that it had passed only up to muscle depth on the back of the left shoulder cutting the skin and muscles.

P.W.9 opined that death would appear to have occurred about 18 to 24 hours prior to his postmortem examination and the deceased would

appear to have died of shock and haemorrhage due to external injury No. 1 with the corresponding internal injury No. 3 sustained by him. Ex.P.7

is the post mortem certificate issued by the doctor.

P.W.15, Rajasekaran, Inspector of Police, went to the place of occurrence at about 9.30 p.m. and recovered M.O.2 under Ex.P.20 and on

21.10.1983 he seized Ex.P.2, the attendance register of Chandra Textiles where the accused was working and at about 4.00 p.m. on 21.10.1983

he arrested the accused near Nadu Thanneerpandal, interrogated and recorded the voluntary statement given by the accused, the admissible

portion of which is Ex.P.3. Pursuant to the information given by the respondent, P.W.15 was taken to the Serayampalayam road and on the

western side of the road near a bush of Partheniam plants the respondent took out M.O.1, knife which was duly recovered under cover of Ex.P.4,

M.O.6 lungi and M.O.7 shirt were also recovered from the respondent under Ex.P.5 and attested by P.W.8 and one Kandasamy. As the

respondent was found with injuries on his body, he was sent to the hospital by P.W.15 for treatment.

P.W.10, Dr. Alphonse Mariadas, examined the respondent at about 7.10 p.m. on that day and he found the following injuries:

1) an abrasion in the dorsum of right

2) an abrasion over the right temporal region;

3) an abrasion over the left eye-brow;

4) an abrasion over the let shoulder; and

5) abrasions over the right thigh and left thigh.

He opined that the above injuries were simple in nature and issued Ex.P.8. According to him injury No. 1, the abrasion found on the dorsum of the

right index finger as well as injury No. 4 abrasion over the left shoulder, could have been caused due to bitting with M.O.2 and the other injuries

could have been caused due to beating with stick.

The goat with bit injuries had been sent to a veterninary doctor P.W.1 1. He had examined the same and found an injury of 0.5 m.m. breadth

and 0.5 depth of the left upper gluetal region and issued Ex.P.9 certificate. Then P.W.15 gave requisition Ex.P.10 to the Judicial Second Class

Magistrate No. 3, Coimbatore for sending the blood stained articles for chemical examination. As per the evidence of P.W.13, Kannian, Head

Clerk of the Court of the Judicial Second Class Magistrate, Coimbatore, they were sent with the covering letter of the Magistrate and the office

copy of the letter has been marked as Ex.P.11 and the chemical examiner''s report and serologist''s report have been marked as Ex.P.12 and

Ex.P.13 respectively. A perusal of Ex.P.12 and Ex.P.13 reveals that the knife M.O.1 and M.O.2 stick were found to contain blood by the

Chemical Examiner and according to the Serologist''s report, human blood detected was of the origin of ''0'' group.

After completion of investigation by P.W.15, P.W.16. Damodaran, Inspector of Police, Singanallur, laid charge-sheet since P.W.15 went on

leave.

When the respondent was questioned by the learned trial Judge on the basis of the incriminating circumstances appearing against him in

evidence, the respondent had denied the version as claimed by the prosecution witnesses. But he has staled that after the day''s work was over, he

was returning to his house and at that time, deceased Chinnasamy with M.O.2 and P.W.2 with a knife came and questioned him about his dog

biting the goat and the deceased beat him indiscriminately on his head and shoulder and P.W.2 kicked him and he fell down. The deceased beat

him on his head saying that he should be done away with and P.W.2 aimed to stab him and he warded off the knife and it fell down. Again, he was

beaten indiscriminately and kicked by P.W.2 and fearing that he may be killed, he took the knife which had fallen from the hands of P.W.2,

stabbed Chinnasamy and reached the Police Station and he was narrating the occurrence and it was taken down by the Sub Inspector and at that

time P.W.1 came to the Station and the Sub Inspector, P.W.14, stopped taking down his statement took them to the place of occurrence and the

Sub Inspector obtained a statement from P.W.1 at the place of occurrence. The respondent did not examine any witnesses on his side.

On assessing the entire evidence tendered by the prosecution both oral and documentary and the nature of defence taken by the

accused/respondent viz. the right of private defence, the learned trial Judge held that the prosecution had clearly established that the respondent

stabbed deceased Chinnasamy with M.O.1, knife and held that the contentions put forward by the respondent that he stabbed the deceased in

exercising his right of private defence cannot be accepted. The learned trial Judge while recording the said finding stated that having regard to the

facts that the deceased Chinnasamy had gone to the house of the respondent and had threatened his mother and consequently the respondent went

to the house of the deceased to question his conduct the deceased Chinnasamy beat him with M.O.2 and the respondent sustained injuries and

under such circumstances, the offence committed by the respondent would clearly be one u/s 304 Part I, IPC and having so held, the learned trial

Judge acquitted the respondent of the charge u/s 302, I.P.C., but convicted him u/s 304, Part I, IPC and sentenced him to undergo rigorous

imprisonment for five years.

It has become relevant at this stage to note that against the finding of the learned trial Judge for conviction and sentence u/s 304 Part I I.P.C.

against the respondent, an appeal has been preferred before this Court in Criminal Appeal No. 429 of 1984 in which the State/Appellants herein

was the respondent. The said Criminal Appeal No. 429 of 1984 was heard in full by the learned Single Judge of this Court P.K. Sethuraman, J.

then he was and disposed of on 10.12.1987. The appellant herein who was the respondent in that appeal took active part in the above appeal and

agitated on behalf of the State before the learned Single Judge. On hearing the submissions of the learned Senior Counsel appearing for the

respondent as well as the learned Government Advocate Thiru A.N. Rajan on behalf of the State and on considering the various contentions and

points raised on behalf of the parties, the learned Single Judge after considering the various catena of the case laws and the main defence of right of

private defence pleaded on behalf of the respondent has disposed of the appeal and thereby the finding and conviction of the respondent recorded

by the learned Sessions Judge for the offence u/s 304 Part I I.P.C. was modified to one u/s 304, Part II I.P.C. Thereupon reduced the sentence of

rigorous imprisonment from 5 years to one year for the offence u/s 304, Part II, I.P.C. With the above modification, the learned Single Judge,

dismissed the appeal. It has become relevant at this juncture, to note the findings of the learned Single Judge given in Paragraph 17 of the Judgment

which are usefully extracted as hereunder:

On a careful consideration of the evidence on record and also taking into consideration the principles laid down by the Supreme Court in

Yogendra Morarji Vs. State of Gujarat, , I feel that the finding by the learned Sessions Judge that the appellant cannot be said to have stabbed in

the exercise of right of private defence, is erroneous. But, while coming to such conclusion, having regard to the evidence on record, I feel that the

appellant had exceeded his right of private defence in stabbing the deceased. Accordingly, I feel that the act of the accused will be covered under

Exception-2 u/s 300, IPC and the offence committed by the appellant will be one u/s 304, Part II, IPC. In such circumstances, I feel that the

sentence of rigorous imprisonment for five years imposed on the appellant could be reduced to one year. Learned Counsel for the appellant

submitted that such imposing of sentence of rigorous imprisonment for one year may entail loss of job of the appellant. But, I feel, having regard to

the circumstances under which the offence had been committed, the management in which the appellant is shown to have been working, would

sympathetically consider his continuance in service after the appellant undergoes the remaining part of the sentence of imprisonment imposed on

him.

Thus on a cursory perusal of the case records and the Judgment rendered by the learned trial Judge, it has become clear that the learned trial Judge

has recorded finding of guilty of the accused for the offence u/s 304 Part I I.P.C. and thereupon he has awarded the sentence of rigorous

imprisonment for a period of five years to the respondent herein. But in the appeal on the reappraisal and consideration of the entire evidence on

record relied on by the prosecution, the learned Single Judge of this Court was not inclined to accept the finding of the learned trial Judge that the

respondent cannot have stabbed the deceased in exercise of his private defence. While observing so, the learned single Judge of this Court has

given a clear finding after elaborate discussion of the facts and circumstances and the various legal ratios relating to the availability of the right of

private defence, he has come to the clear conclusion that the respondent/accused had exceeded his right of private defence in stabbing the

deceased. On the basis of the clear finding, the learned Single Judge, further modified the conviction from the offence of 304 Part I I.P.C. to one

under 304 Part II I.P.C. and reduced the rigorous imprisonment from five years to one year. In short, as we have already observed, the finding of

conviction and sentence recorded by the Sessions Judge has been completely appraised of as was being agitated and canvassed in the appeal in

Criminal Appeal 429 of 1984 and all aspects namely the recorded evidence, documentary evidence, circumstances, the defence put forward by

the respondent and the various legal ratios have been elaborately discussed in thread bear by the learned Single Judge and accordingly the appeal

in C.A. 429 of 1984 was disposed of on 10.12.1987 and thereby reached finality.

But it has to be noted that this appeal against the acquittal u/s 378 of the Code of Criminal Procedure was preferred by the State during the

month of June 1984 against the finding, conviction and sentence recorded by the learned Sessions Judge in Sessions Case No. 18 of 1984 dated

24.3.1984. Though the appeal against the acquittal was admitted by this Court due to the compliance of Section 378 Cr.P.C. was pending before

the bench of this Court when the Criminal Appeal 429 of 1984 was heard and disposed of it has to be noted further the State which preferred this

appeal against acquittal was made the respondent in the earliest appeal and disposed and the case of the appellant has also been canvassed before

the learned Single Judge. But it is very unfortunate in this context to mention that the pendency of the present appeal against the acquittal was not

brought to the notice of the learned Single Judge while the Criminal Appeal 429 of 1984 was taken up and disposed of. That was the reason why

the learned Single Judge has disposed of the said appeal. But however, in the light of this inadvertence, the chance of both appeals being heard and

disposed of by the Bench of this Court as contemplated by the rules was lost. Consequently, this appeal against acquittal was posted in the list for

hearing and final disposal.

When the hearing of this appeal commenced, Mr. N.T. Vanamamalai, learned Senior Counsel for the respondent in this appeal raised a

preliminary objection with regard to the competency of the appellant in canvassing the present appeal in the context of the disposal of the Criminal

Appeal 429 of 1984 by the learned Single Judge of this Court on 10.12.1987. Relying on sections 393 and 300 of the Code of Criminal

Procedure, the learned Senior Counsel Mr. N.T. Vanamamalai, justifiably contended, that in as much as the finding of conviction and sentence

recorded by the learned trial Judge was reappraised in toto by the learned Single Judge of this Court and the appellant herein had the fullest

opportunity of canvassing his case involved in the present appeal has been elaborately and thoroughly discussed and considered by the learned

Single Judge and the disposal of Crl.A. 429 of 1984 on 10.12.1987 reached a finality and that therefore the present appeal against the acquittal

cannot be looked into and that as such the competency of the appellant to canvass the present appeal against the acquittal cannot be sustained.

The learned Senior Counsel further contended that even on factual aspects the finding of both the trial Judge as well as the learned single Judge of

this Court have discussed and considered thread bare and that even if so, it does not warrant any reappraisal of the said case against and that

lastly, if the present appeal is heard on merits it will cause prejudice to the respondent herein in the sense, it would amount to double jeopardy and

therefore it was the vehement contention of the learned Senior Counsel that the present appeal by the State against the acquittal is to be rejected in

limine.

As regards the dismissal of C.A.429 of 1984 by the learned Single Judge on 10.12.1984 by the learned Single Judge on 10.12.1987 on

reassessing the entire evidence, recorded circumstances and the contentions by the learned trial Judge, we have heard the arguments of Mr. B.

Sriramulu, learned Public Prosecutor and he has not disputed the same. However, we are able to find that while the present appeal preferred

against the acquittal is pending disposal before this Court, failure to bring the same to the notice of the learned Single Judge when he disposed of

C.A.429 of 1984 though was purely due to mistake but very unfortunate. But since the appeal preferred by the accused has been disposed of

already, under the circumstances, we have to consider the competency of the canvassing of the present appeal further. We have heard the various

contentions raised on behalf of the respondent through learned Senior counsel Mr. N.T. Vanamamalai and the learned Public Prosecutor Mr. B.

Sriramulu for the State/appellant.

The points which arise for consideration under the circumstances are whether the appellant is competent to canvass this appeal in the context

of the disposal of C.A.429 of 1984 by this Court on 10.12.1987 and whether the question involved in this appeal against acquittal has already

reached a finality.

Before proceeding further, we feel it necessary to advert to Section 300 of the Code of Criminal Procedure which reads as follows:

1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence, shall while

such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for

which a different charge from the one made against him might have been made under sub-section (I) of section 221, or for which he might have

been convicted under sub-section (2) thereof.

2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for

which a separate charge might have been made against him at the formal trial under sub-section (1) of section 220.

3) A person convicted of any offence-constituted by an act causing consequences which, together with such act, constituted a different offence

from that of which he was convicted may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not

known to the Court to have happened, at the time when he was convicted.

4) A person acquitted or convicted of any offence constituted by any acts may notwithstanding such acquittal or conviction, be subsequently

charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried

was not competent to try the offence with which he is subsequently charged.

5) A person discharged u/s 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or

of any other Court to which the first-mentioned Court is subordinate.

6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 or of section 188 of this Code.

The relevant illustration which became necessary to be quoted is illustration (d) to this Section which is as follows:

(d) A is charged by a Magistrate of the first class with, and convicted by him of, voluntarily causing hurt to B. A may not afterwards be tried for

voluntarily causing grievous hurt to B on the same facts, unless the case comes within sub-section (3) of this section.

With regard to the question involved in this appeal to be disposed of we are inclined to advert to section 393 of the Code of Criminal Procedure

which reads as follows:

Judgments and orders passed by an appellate Court upon an appeal shall be final, except in the cases provided for in section 377 section 378,

sub-section (4) of section 384 or Chapter XXX.

Provided that notwithstanding the final disposal of an appeal against conviction in any case, the Appellate Court may hear and dispose of, on the

merits-

a) an appeal against acquittal u/s 378, arising out of the same case, or

b) an appeal for the enhancement of sentence u/s 377 arising; out of the same case.

Thus, the above section clearly envisages that if an appellate Court renders a finding on the appraisal of the entire case in an appeal, then it shall

be final and that the finality has been reached the moment it was disposed of by the Appellate Court on merits by rendering the Judgment. But this

section provides 2 exceptions under Sections 377 and 378. Section 377, Cr.P.C. reads as follows:

(1) Save as otherwise provided in sub-section (2) the State Government may, in any case of conviction on a trial held by any Court other than a

High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground if its inadequacy.

2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi

Special Police Establishment Act. 1946, or by any other agency empowered to make investigation into an offence under any Central Act other

than this Code, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court against the sentence on the

ground of its inadequacy.

3) When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after

giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause the accused may plead for his

acquittal or for the reduction of the sentence.

Then comes Section 378 which reads as follows:

(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any

case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other

than a High Court or an order of acquittal passed by the Court of Session in revision.

Then the relevant sub-clause (4) is extracted which reads as follows:

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court on an application made to it by the complainant

in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

Thus, it is seen that in furtherance of the above Procedural Law contemplated in the above sections, the present appeal has been preferred and

with regard to the same as well as the disposal of Criminal Appeal 429 of 1984 by a Single Judge of this Court on 10.12.1987 there is no dispute

among the parties herein. Under the circumstances, it has become necessary to consider the availability of case laws on the subject. At this stage,

we have to consider again the points involved in the present appeal. The conviction and sentence of the learned trial Judge recorded u/s 304 Part I

IPC and sentencing the accused for a period of 5 years rigorous imprisonment is not adequate and the acquittal of the respondent by the learned

trial Judge for the offence u/s 302 I.P.C. is not proper and not based on the evidence tendered by the prosecution are the substratum of the

grounds urged in the appeal. Therefore, the points that arise for consideration in the present appeal are the following:

1) Was the Sessions Court right in convicting the accused u/s 304 Part I IPC and

2) Was the sentence passed by the trial Judge proper in the circumstances of the case proved by the prosecution?

On a perusal of the Judgment rendered by the learned Single Judge of this Court in C.A.429 of 1984 on 10.12.1987, it is seen that the question

whether the learned Sessions Judge was wrong in acquitting the respondent for the offence u/s 302, I.P.C. did not arise for determination and that

consequently has not been considered by this Court in the said appeal. It is manifest that the High Court hearing an appeal from the conviction is

not competent to set aside an acquittal in respect of which no appeal has been filed. Therefore and accordingly as contemplated by Sections 377

and 378 of the Code of Criminal Procedure, the present appeal has been filed and being canvassed.

We are conscious of the fact that when an appeal from a conviction is filed by the accused person and the State file an appeal against his

acquittal, both the appeals are generally heard together on the principle that hearing of the two appeals is not only a matter of convenience but also

to avoid conflict of decisions and that even when two appeals are heard together, there must be separate judgments in the two appeals.

In State Vs. Diwanji Gardharji and Others, it was held as follows:

...the finding that the accused committed an offence under S.304 Penal Code (offence of culpable homicide not amounting to murder) which was

confirmed by the Bench of the High Court in a prior appeal preferred by the accused was final and hence another Bench of the same High Court,

hearing an appeal against acquittal of the accused under S.302 (culpable homicide amounting to murder) preferred later on by the State could not

find the accused guilty of the offence under S.302.

In paragraph 16 of the Judgment at page 27 their Lordships of the Division Bench of the Gujarat High Court have held as follows:

As already observed, while so doing we must bear in mind the provisions of section 430 Criminal Procedure Code.... We, therefore, have to see

what were the points for determination before the Division Bench which decided Criminal Appeal No. 645 of 1960 and what were its decisions.

The Sessions Judge convicted the accused u/s 304 Indian Penal Code and this finding was confirmed by the High Court in appeal. This finding is,

therefore, that the accused was guilty of the offence of culpable homicide not amounting to murder. That finding is final u/s 430 Criminal Procedure

Code and in this view of the matter, we cannot hold that the accused was guilty of the offence of culpable homicide which amounts to murder.

Although two views are possible, technically and strictly speaking the two findings would be contradictory. We cannot therefore allow the appeal

against acquittal u/s 302 I.P.C. because the accused were convicted under S.304 I.P.C. and the conviction is confirmed.

In The State Vs. Mansha Singh Bhagwant Singh, it was held as follows:

The decision, by a Judge of the High Court after full hearing and with notice to both parties, of an appeal against conviction on a minor charge bars

the hearing by the High Court of a pending appeal by the State against the acquittal of the convict on a graver charge comprehending the aforesaid

minor charge.

In Manipur Administration v. Thokchom, Bira Singh AIR 1965 S.C. 687 a larger Bench of the Apex Court have held as follows:

Sub-ss.(1) to (3) of S.403 of the Code of Criminal Procedure deal with the trial of an accused for an offence and his conviction therefor. The

question raised for decision in Pritam Singh''s case however was different and was whether where an issue of fact has been tried by a competent

court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or rev judicata

against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of

evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of

S.403(2)

It would not be correct to say that the principle underlying in Sambasivan''s case was dissented from in R.v.Connelly. Besides, it should be pointed

out that the principle underlying the decision in Pritam Singh''s case did come up for consideration before this Court on several occasions, but it

was never dissented from though in some of them it was distinguished on facts.

8(ii)The rule of issue-estoppel does not prevent the trial of an offence as does autre fois acquit but only precludes evidence being led to prove a

fact in issue as regards which evidence had already been led and a specific finding recorded at an earlier criminal trial before a court of competent

jurisdiction.

The rule of issue-estoppel is not the same as the plea of double jeopardy or autre fois acquit is also clear from the statement of the law by Lord

Mac Dermott in Sambasivam''s case.

(iii) It is clear that S.403 of the Criminal Procedure Code does not preclude the applicability of this rule of issue-estoppel. The rule being one

which is in accord with sound principles and supported by high authority and there being a decision of this Court in Pritam Singh''s case which has

accepted it as a proper one to be adopted, thee is no reason for discarding it.

Section 403 Cr.P.C. in the old Code corresponds to Section 300 Cr.P.C. in the new code. While emphasising the above ratio, the Apex Court

has further observed as follows:

We shall address ourselves to the question as to whether what is termed ""issue estoppel"" which has been held by this Court in Pritam Singh''s case

to be applicable to criminal proceedings is excluded by reason of the provisions of the Criminal Procedure Code. For this purpose learned

Counsel invited our attention to S.5(1) which enacts:

All offences under the Indian Penal Code shall be investigated, inquired into, tried, otherwise dealt with according to the provisions hereinafter

contained."" This, however, in our opinion, does not afford any assistance to the argument because Pritam Singh''s case did not introduce any

variation in the Code as regards either investigation, enquiry or trial. As we have pointed out earlier, issued estoppel does not prevent the trial of

any offence as does autre fois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led

and a specific finding recorded at an earlier criminal trial before a court of competent jurisdiction.

Lord Dixon, J. in The King v. Wilkes 77 C.L.R. 511 at 518 has observed as follows:

Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue estoppel,

if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous

criminal trial which is brought in issue on a second criminal trial of the same prisoner. That seems to be implied in the language used by Wright, J. in

R.V. Ollis which in effect I have adopted in the foregoing statement.... There must be a prior proceeding determined against the Crown necessarily

involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the

subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs

arises I see no reason why the ordinary rules of issue-estoppel should not apply. Such rules are not to be confused with those of res judicata,

which in criminal proceedings are expressed in the pleas of autre fois acquit and autre fois convict. They are pleas which are concerned with the

judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. Issue-estoppel is concerned

with the judicial establishment of a proposition of law or fact between parties. It depends upon well-known doctrines which control the relitigation

of issues which are settled by prior litigation.

It is therefore, clear that S. 403 of the Criminal Procedure Code does not preclude the applicability of this rule of issue-estoppel. The rule

being one which is in accord with sound principle and supported by high authority and there being a decision of this Court which has accepted it as

a proper one to be adopted. The above legal ratio has been followed and emphasized in Ravinder Singh v. State of Haryana in Lalta v. State of

U.P. 2 Supreme Court has held as follows:

Where an issue of fact has been tried by a Competent Court on a former occasion and a finding of fact has been reached in favour of an accused,

such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a

different offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a

different offence which might be permitted by the terms of Section 403(2) Criminal P.C. Section 403 docs not preclude the applicability of this rule

of issue estoppel.

Learned Public Prosecutor Mr. B. Sriramulu has frankly conceded that in the context of the clear finding and verdict recorded by the learned

Single Judge of this Court in Criminal Appeal No. 429 of 1984 against the respondent herein after hearing both the State viz. the appellant in this

appeal and the respondent, on considering the entire recorded evidence found the responded guilty u/s 304, Part II IPC and whereupon sentenced

him to undergo rigorous imprisonment for one year while the present appeal against the acquittal u/s 302, I.P.C. was pending and that therefore, as

contemplated by the Code of Criminal Procedure, the decision rendered by the learned Single Judge in the above appeal has reached its finality.

But the learned Public Prosecutor did not agree that in view of the applicability of the doctrine of issue-estoppel as laid down by their Lordships in

the various cases above referred, this Court is not competent to entertain the present appeal which would mean according to the learned Public

Prosecutor, the present appeal against acquittal can be maintained u/s 376 of the Code of Criminal Procedure. But in the light of the above legal

ratios laid down by the Apex Court in very many cases, this appeal need not be considered on merits for the simple reason that the main points

involved have been considered discussed and reached their finality by this Court already. We have heard the views of Mr. N.T. Vanamamalai, the

learned Senior Counsel for the respondent. He agrees for the said principle. Therefore, in the light of the legal ratio namely the applicability of the

doctrine of issue-estoppel as clearly laid down by their Lordships of the Apex Court u/s 300 of the amended Code of Criminal Procedure, we are

fully satisfied to hold that the present appeal against the acquittal though is maintainable but lost its significance, for its consideration on merits in the

context of the issue involved in this appeal has already reached its finality in the Criminal Appeal 429 of 1984 decided by the learned Single Judge

of this Court on 10.12.1987. Whatever may be the adequacy or the inadequacy of the finding and the consequent sentence recorded by the

learned Single Judge, since it has reached its finality already and disposed of, there exists no need for us to consider this appeal again on merits in

the light of the above legal ratio of the doctrine of issue-estoppel.

In the result, the present appeal fails and accordingly it is dismissed.