KARNAL SINGH AND ANOTHER versus THE STATE OF PUNJAB

904

SUPREME COURT REPORTS

[1954J

1954

Ja11uary 29.

KARNAL SINGH AND ANOTHER

f),

THE STATE OF PUNJAB.

[BHAGWATI,

JAGANNADHADAS and

VENKATARAMA AYYAR JJ.J

Indian Penal Code (Act XLV of 1860), ss. 34 and 149-Scop<" of-Charge under s. 302 read with s. 149-Conviction under s. 302' 1·ead tvith s. 34-Whether valid.

It was contended that the conviction of the appellants under s. 302, Indian Penal Code, read with s. 34 was illegal when they had been charged only under s. 302 read with s. 149 because the scope of s. 149 was different from that of s. 34, that while what s. 149 required was proof of a common object, it would be neces there- sary under s. 34 to establish a common intention and . fore when the charge against the accused was under s. 149, it could'

that

not be conv~rted in appeal into one under s. 34.

is

it

the

the

true

that

then

there

Held, that

is substantial

it is a question

two sections but they also to

If the common object which is the subject.matter of

difference some extent overlap between to be determined on the facts of each case an<l \vhether the charge under s. 149 overlaps the ground covered by the s. 34. charge under s. 149 docs not necessarily involve a common inten· tion, in to be permitted. prejudice to the accused and ought not therefore But if the facts to be proved and the evidence to be adduced with: reference to the charge under s. 149 would be if the· charge were under s. 34, then the failure to charge the accused· under s. 34 could not result in any prejudice and in such cases the . substitution of s. 34 for s. 149 must be held to be a formal matter .. There is no such broad proposition of law that there can be no· recourse to s. 34 when the charge is only under s. 149.

substitution of s. 34

for s. 149 might

the same

result

Whether such recourse can he had or not must depend

on the-

facts of each case.

The facts of the present case \Varranted such a recourse. Dalip Singh v. State of Punjab (A.LR. 1953 S.C. Barendra Kumar Ghosh v. EmPeror (I.LR. 52 Cal. 197 Lachman Singh v. The State ([1952] S.C.R. 839) referred to.

364),. P.C.),.

CruMINAL APPELLATE

JuR1so1cr10N : Criminal Ap

peal No. 64 of 1953.

Appeal by special

the Judgment and Order dated the 9th June, 1953, of the High Court of for the State of Punjab at Simla (Falshaw Judicature and Kapur JJ.) in Criminal Appeal No. 60 of 1953

leave from

S.C.R.

SUPREME COURT REPORTS

905

arising out of the Judgment and Order dated the 15th December, 1952, the Additional Sessions Judge, Ferozepore, in Sessions Case No. 50 of 1952 and Trial No. 57 of 1952.

the Court of

of

fai Copa! Sethi (R. L. Kohli, with

him)

for

the

appellants.

.Porus A. Mehta for the respondent. 1954. delivered by

January 29. The Judgment of the Court was

VENKATARAMA

AYYAR J.-This

is an appeal by lea\·e by Karnaii Singh and Malkiat Singh the the High Court of Punjab the Additional Sessions Indian Penal

special judgment of against confirming their conviction by J i!dge of F erozepore under section 302, Code, and the sentence of death passed on them.

1954

Karnail Singk a1td Another v. The State of Punjab.

·V mkatarama Ayyar ] •

.in

come

the sabath

The facts as

out. Gurbaksh Singh

time, Gurbaksh Singh was sitting on

found by the courts below are as follows: There had been long standing enmity between and their party on the one hand and the appellants the deceased Gurbaksh Singh and his party on the a number ot crimes, ~nd proceed other, resulting in the 27th January, 1952, at about ings in court. On inside his sunset and his sister Mst. Bholan house the kitchen. Then the a]cpellants and . their was to the place armed with rin~s, got on the men came the house of Gurbaksh Singh and challenged roof of and Mst. him to Bholan went the door from in side. Then the appellants and their men made holes in inflammable materials, ignited the such as dry them the kotha threw the holes and set fire through the building. Both to Gurbaksh Singh and Mst. Bholan were caught inside and burnt to death. A brother of Gurbaksh Singh called Dev, who had been at that time away, was, according sub sequently thrown into the flames and was also burnt to death. Meantime one Gurnam Singh, P. W. 13, a cousin of Gurbaksh Singh and his neigh to slip out of the village and reported bour, managed the occurrence at the police station at Nihal Singhwala,

roof with spades, twigs, and

the prosecution, seized when he

to turned up,

to the kotha and bolted

inside

1954

,K arnail Singh and Another v. The State of Punjflb.

iV enkatarama Ayyar J.

906

SUPREME COURT REPORTS

[1954J

of

and

that

in his

recovered

and was

remains of

information,

three dead bodies and

the object of burning

in Exhibit PQ as one

the appellants, were charged

and with Gurnam Singh. He found therefrom

a place eight miles away (vide Exhibit PQ). It was then 10-30 P.M. On receipt of this the police sub-inspector, P.W. 25, went to the village with a posse the of constables house mostly burnt the charred they were identified as those of Gurbaksh, Dev and Mst. Bholan. The appellant Kamai! Singh was actually seen at that place and arrested on the spot. Malkiat Singh who had been mentioned the pamc1pants was found house with gunshot wounds also arrested. Eventually eight persons, including under section 148, Indian Penal Code, for forming an unlaw ful assembly with the house oi Gurbaksh Singh and murdering him, Der and Mst. 149 Bholan, and under section 302 read with section their murder. The Additional Sessions Judge, for F erozepore, held the case had not been establish ed beyond doubt as against two of the accused and he the six accordingly acquitted the appellants under section 148 and others including section 302 read with section 149. and sentenced them to death. On appeal, the learned Judges of the Punjab High Court held that "although there can be no took place more or less on the lines described by the prosecution witnesses, and the primary object of the culprits must have been in to murde" Gurbaksh Singh, deceased, consequence of the bitter enmity. between him and the main body of the accused" and that "although it may very well be true that all the six appellants took part in four accused other insufficient to to sustain their conviction, as it consisted of the testi mony of persons who were at a distance of 40 to 50 to feet from the scene identify only by their voice. They were accordingly acquitted. Then dealing with the case against the two appellants they observed that there was evidence of the two eye t]:iem, as against witnesses, Gurnam Singh (P. W. 13) and Maghar Singh

this occurrence". than

of occurrence and who claimed

them. He convicted

the appellants was

evidence against

doubt whatever

the occurrence

the particular

accused

that

the

the

'

S.C.R ..

SUPREME COURT REPORTS

that ·nothing could be urged against

(P. W. 14), that Maghar Singh was not a reliable wit ness, the evidence that even so it would be unsafe to of Gurnam Singh, base a conviction on his evidence alone, but that the of Karnail Singh at the spot and the exist presence ence of. wounds on the person of Malkiat Singh afford of the evidence of Gurnam ed sufficient corroboration Singh. They the conviction and sentence as against the appellants. As four of the accused were acquitted the learned Judges the conviction of the appell:mts under section set aside 149 substituted section 34, Indian Penal Code, therefor.

accordingly

confirmed

in appeal,

and

1954

Kamai[ Singh and Aflf.Jthrr v. The Statt _of Punjab.

V enkatarama AyyarJ.

the

the

that

the guilt of

appellants. The

in error in holding

it was corroborated,

insufficient that

the argument of that

reliable was the appellants and

Two contentions: have been urged on behalf of the the evidence which had been accepted appellants, that by the learned Judges as to their establish conviction under section 34 was bad as no charge had been framed against them under that _section .. On the first point, the learned counsel for the having held that the only eye appellants was witness whose evidence was worthy of credence was P.W. 13, and that even his evidence could not be acted upon unless learned Judges there was. such corrobo- were against ration circumstance by the. court below as corroborating the on 'relied evidence of the appellants were '[' .W. 13 was proved to have been present at the scene of occurrence. and there was no satisfactory explanation from .them regards Karnail Singh, the police sub therefor. As found him emerging out inspector, P.W. 25, actually in his hand. He of the burning house with a spear had injuries on his person and his pyjama was blood stained. He was arrested on the spot and the spear and the pyjama were seized and marked as Exhibits P-12 and P-20. As for Malkiat Singh, his name was mentioned in the first information report, Exhibit. PO, and P.W. 25 went to his house and found him with In the statement gunshot wounds and arrested him. given by Karnail Singh under section 342, Criminal Procedure Code, he stated that when he saw the house

that

1954

Jl arnail Singh and Anothtr v. The State of Punjab.

V rnkatarama AyyarJ.

908

SUPREME COURT REPORTS

[1954}

that when

on fire, he went that Malkiat Singh came

there and was of Gurnam Singh assaulted by culprits, there to help him, they were grappling with the culprits he was attacked and Malkiat Singh received a gunshot and thereafter to their houses. The statement of Malkiat Singh also was on. similar lines. that any other person or persons were responsible for the acts and the learned Judges therefore rejected the explanation of these injuries while the appellants that "they received intervening against on behalf of their bitterest enemy."

There was no evidence

unknown assailants

they went away

as untrue

some

It

for

the

that

only

is contended

the appellants

in the case as

theory Singh might

itself mean nothing and that

that the mere . presence of Kamai! Singh at the place of occurrence would it would in if some further act corroboration to amount in character was proved. With reference incriminatory it was argued that the existence of to Malkiat Singh, there was gunshot wounds would be inconclusive as no evidence as to how· they were caused. It was con tended of the learned Judges that Gurbaksh shot at him himself have through the hole while he was on the roof was wholly unsupported to the medical by evidence and opposed evidence to the nature of the wounds and recovered from the' there was accordingly nothing to house, the incident at the house connect Malkiat Singh with of Gurbaksh Singh. With to the statements of the accused admitting their presence at the place that some culprits had set fire to the but explaining it was house and that they went if the statements were argued to be taken into considr.ration they must be taken as a whole and that it was not proper to accept the incriminating portion the and reject observations of Stat~ of Madhya Pradesh('), at page 1111 were relied on in support according there was not sufficient to

the exculpatory portion

to the fact and

position. The result

in Hanumant v.

that no gun was

there thereafter,

thereof and

this court

reference

is that

that

that

this

of the appellants (1) [1 9521s.c.R.1091.

,

1954

K arnail Singh a11d Another v. The Stalt of Pu,Yab.

V enkatarama AyJ<lr J.

S.C.R.

SUPREME COURT REPORTS

909

corroboration of the evidence of P. W. 13 to support their conviction.

in

It is necessary

sufficient It

should be remembered

in view of this contention

learned Judges had nothing

the circumstances disclosed the to corroborate

to examine to see what corroboration there in order the evidence each of the appellants. So far as Kamai! is against his presence, at the scene of occur Singh is concerned, the evi under rence evidence of dence is that Gurnam P.W. 13. is not an approver. He is a witness against whom Singh if they the required corroboration of his evidence it was because he was a relation of the deceased and it was consider to base a conviction on his sole testimony. ed not safe in such cases is not The corroboration to support the evidence of what would be necessary an approver but what would be sufficient to "lend assurance them, and satisfy the evidence them that the particular persons were really concerned in the murder of the deceased." (Vide Lachhman Singh v. State(•)). Kamai! Singh was arrested on the spot with a spear and a bloodstained pyjama, and these are pieces of evidence which would support the inference that he was concerned in the crime.

to say and

required

that is

before

to

the statement

the scene of occurrence

the mention of his name

The case of Malkiat Singh presents greater difficulty. in his house with gunshot wounds on it could be established that they that would to connect him with the crime. We in Exhibit PQ to be sufficient corroboration because of P. W. 13 at an earlier independent evidence. With under true

He was arrested his person and unless were received at be sufficient not agree that cannot be held that is only stage and reference section 342, Criminal Procedure Code, that if it . is sought must of distinct why an be not ments

to be used as an admission it it consists is no reason in one matter should the state to In this case the

and separate matters, there contained

on without reference other matters. to

admission relied relating

not is the statement

as a whole; but where

of the accused

read

be

to

it

it

is

(1) [1952] S.C.R. 839 at p. 845.

~

1954

K arnail Singh and :4.nothe.r v. Tht State of Purrjab.

V tnkatar(lma A;yar J.

910

SUPREME COURT REPORTS

[19541

as

the

that

that

in their view

the appellant

the appellant

the statement of

tc how he received

alternative. They observed

that he was present at or admiss.ion of near the scene of occurrence is distinct and separate from his explanation the 1111uries. The learned fodges having disbelieved, in our opinion rightly, that the house was burnt by sorr.e unknown enemies of Gurbaksh Singh and that it was they who murdered him, we do not see any objection to the statement of the appellant that he was present at the scene of the occurrence from being used as an admission. Another piece of corroboration which the learned Judges relied on was the gunshot wounds must have been received .by Malkiat Singh at the house of their finding on this point Gurbaksh Singh. They gave in the injuries might have been caused by Gurbaksh Singh firing from the house. But of this there is no evidence and inside it and as the medical evidence is in fact opposed to already stated, no gun was the house recovered from of the deceased. In the alternative, they observed that injuries might have been caused by a shot from the one ot his own men. This view is supported by the evidence of P. W. 14 who deposed the incidents were that he had been shot by one of his own men and then left the ·for the appellant that as the learned Judges had declined to act on the evidence of P. W. 14, the alternative suggestion must be ruled out learned as unsupported by evidence. What all the about P.W. 14 was Judges it was that "impossible very great reliance on any Maghar . Singh's evidence". But then they also express ly referred to his evidence on this point (Vide page 61 of the record) and accepted the possible alternatives (Vide page 65). And on their finding that the injuries must have been received at the place of the theory that Gurbaksh Singh fired occurrence the shot being negatived, there is no difficulty in hold~ ing that they were prepared the evidence of P. W. 14 on this point. Thus there are ample materials received for holding by Malkiat Singh in the house of Gurbaksh Singh and

that while in progress Malkiat Singh stated

the gunshot wounds were

remarked to

it as one of

It is argued

to ac_cept

place.

place

that

and

1954

Karnaii 5inlllt a.a Aul;.lf •• Till ~t.u (if P..jo/J.

S.C.R

SUPREME COURT REPORTS

911

is sufficient

corroboration

of

In

this

view we must overrule

the evidence of the first

that P. W. 13. contention.

is proof of a common object,

Then the next question is w'.:ether

the conviction of the appellant under section 302 read with section 34, when they had been charged o.Jy under section 302 read with section 149, was illegal. The contention of the appellants is that the scope of section 149 is differe:it that while what section 149 from that 01 section 34, requires it would be necessary to establish a common therefore when the charge against intention and that it cannot be under accused the into one under section 34. The converted following observations of in Dalip Singh v. State of Punjab(') were relied on in support of this position:- "Nor

is in appeal

section 149

this court

section

ilnder

34

is it possible to section 34 because charged with common common object being the same thing."

that even

in

chi's case to have recourse the appellants have not been in the alternative and the the and a1 c far [ram

intention required by section 34

required by section 149

149

It is

section

true that there

is substantial difference between the two sections but as observed by Lord Sumner in Barendra Kumar Ghosh v. Emperor('), they also to some extent overlap and it is a question to be deter mined on the facts of each case whether the charge the ground covered by overlaps under If the common object which section 34. is the subject section 149 does not matter of the charge under the subs necessarily involve a common intention, then titution of section 34 for section 149 might result in to the accused and ought not therefore to be prejudice to be proved and the evi permitted. But to the charge dence • to under section if the charge were under section 34, to charge the could not result in any accused

be adduced with reference 149 would be the same

then the failure

if the facts

under section

34 (x) A.I.R. 1953 S.C. 364 at p. 3f,6. (•) I.L.R.52 Cal. 197 (P.C.).

'

7-96 S.C. India/59 .

•

1954

Kamail Sing!i ona AtuJt:ier v. Tht StaU of Pu.if ab.

V 1nkatarama Ayyar J.

912

SUPREME COURT REPORTS

[19541

in

that

the observations

for section 149 must be held

section prejudice and in such cases the substitution of to be a formal matter. 34 We do not read in Dalip Singh v. State of Punjab(') as an authority for the broad pro law there could be no recourse to pmition section 34 when the charge is only under section 149. Whether such recourse can be had or not must depend the facts of each case. This is in accord with the on taken by this court in Lachhman Singh v. The view State(') where the substitution of section 34 for sec tion 149 was upheld on the ground that the facts were such "that the accused have been charged could alternatively 302 read with section 149, or under section 302 read with section 34."

section

under

either

this point of view

Examining the record from

both the appellants who had

the long findings are that standing enmity with Gurbaksh Singh, got on the roof to it, with the deceased and of his house and set fire If it was their object Mst. Bholan couped up within. to burn the house and cause the under section 149 that was also their intention death of Gurbaksh Singh, under section 34. On the facts of this case there can the object and the intentio11 be no difference between the offences were committed. Our atten with which tion was also drawn the wording of the charge whicl, while mentioning section 149 also sets out that the accused in prosecution and murdered to intentmnally the house GurbaKsh Singh and Mst. Bholan. We are satisfied the substitution of section 34 in the place of that section 149 by the court below has charge resulted in no prejudice to the appellant and it is there fore not open to objection.

the common object

fire

the

set

in

of

to

The appeal fails and is dismissed.

,

Appeal dismissed.

Agent for the appellants: Nau nit Lal. Agent for the respondent: R. H. Dhebar.

(1) A.J.R. 1953 S.C. 364. (2) [1952] S.G.R. 839.

•

•

'