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PETITIONER: BHAJAN SINGH & ORS.

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT09/04/1974

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. CHANDRACHUD, Y.V. SARKARIA, RANJIT SINGH

CITATION:  1974 AIR 1564            1974 SCR  (3) 891  1974 SCC  (4) 568

ACT: Indian Penal Code (Act 45 of 1860), s. 149--Scope of. Constitution    of   India,   1950,    Art.    136--Criminal appeal--Interference by Supreme Court.

HEADNOTE: The  three appellants and two others were convicted  for  an offence   under   s.  3021149,  I.P.C.  and   sentenced   to imprisonment  for  life  by the High  Court,  affirming  the judgment of the trial court. Dismissing the appeal by special leave, HELD  : (1) In in appeal under Art. 136 of the  Constitution this  Court  is \cry slow to interfere with  the  concurrent conclusions  of  the  two  courts  below  \with  regard   to appreciation of evidence of the witnesses.  The accused must be  able  to  make Out an extraordinary case  of  gross  and palpable  injustice  to  induce this Court to  take  a  view contrary to that arrived at by the High Court [893 E] (2)The  evidence  disclosed  that the  live  accused  were members  of an unlawful assembly with the common  object  to kill  the  deceased.  The manner ill which the  defence  was conducted in the trial court shows that the accused were not prejudiced by the use of the word ’beat’ in the charge. [893 G-894 D] (3)Even if the accused were originally members of unlawful assembly with the common object of only hearing the deceased they would be guilty under s. 302 read with the second  limb of  s. 149.  Since they came armed with deadly  weapons  and knew  that by using those deadly weapons upon  the  deceased death  would be caused.  This is not a case where  something foreign.  or unknown to the original object had taken  place all  of a sudden.  Even assuming that the unlawful  assembly was   formed  originally  only  to  beat,  it   is   clearly established  in the evidence that the said object  is  well- knit  with  what  followed as the dangerous  finale  of  the beating.   It ’was the execution of the same  common  object which assumed the fearful character implicit in the illegal’ action undertaken by the five accused. [894 F-G; 895 A-E] K.C. Mathew and others v. The State of  Travancore-Cochin [1955] 3 S.C.R. 1057, followed. (4)  There is no circumstance in the case which can bring it

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under s. 304’ I.P.C. [894G]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 10 of 1970. Appeal  by special leave from the judgment and  order  dated the  29th  August,  1960  of the  Allahabad  High  Court  in Criminal Appeal No. 568 of 1967. C.   L. Sarin and R. L. Kohli, for the appellants. D.   P. Uniyal and O. P. Rana, for the respondent. The Judgment of the Court was delivered by Goswami,  J.  This  criminal  appeal  by  special  leave  is directed’  against the judgment of the Allahabad High  Court affirming  the  conviction of the  five  appellants,  Bhajan Singh,  Chain Singh, Baldeo Singh Jagat Singh and  Gurbachan Singh under section 302/f49 I.P. C. and’ 892 sentence  of imprisonment for life on each of them.   Bhajan Singh,  Chain  Singh  and  Jagat  Singh  have  further  been convicted  under  section  147 I. P.  C.  and  sentenced  to rigorous  imprisonment for one year each ,and the two  other appellants have also been convicted under section 148 1.  P. C. and sentenced to one and a half years rigorous, imprison- ment  each.  Special leave was refused to Baldev  Singh  and Gurbachan Singh. The prosecution case may briefly be stated Chain Singh and Baldeo Singh are sons of Bhajan Singh,  Gur- bachan  Singh  is the son of Jagat Singh.  The  deceased  is Bakhsheesh  Singh, who was the brother of Major Singh and  a cousin   of  appellant,  Bhajan  Singh.   Major  Singh   had purchased  some land in their village Paivandkheri from  one Sohan  Singh and Gurbachan Singh was in unlawful  possession of  over  15  to  16 bighas of the  said  land.   There  was litigation  between  Gurbachan  Singh  and  Major  Singh  in respect of this land.  Gurbachan Singh subsequently sold his entire  land  including the disputed area to  Bhajan  Singh. Thereafter  Major  Singh and his father Ujagar  Singh  asked Bhajan  Singh to give up possession over the land  purchased by  Major Singh and, on the day before the occurrence,  su.- gested to him that, they should go to the Patwari and settle the  matter to which Bhajan Singh agreed. On  September  17, 1964, at about 11.30 A.M. Bakhsheesh started on a cycle  for the house of the Patwari with papers in connection with  the disputed  land.   He was followed on foot,  by  his  father, Ujagar Singh and brother Major Singh.  When Bakhsheesh Singh had hardly gone a distance of about 20 or 25 paces from  his house,  the five appellants accosted him, Baldeo  Singh  was armed  with a spear and Gurbachan Singh with a  gandasa  and the   three  other  appellants  were  armed   with   lathis. Bakhsheesh  Singh got down from the cycle and  Bhaian  Singh caught hold of him and incited the other :appellants to beat him.  Baksheesh Singh requested the appellants to  accompany him  to the Patwari to settle the dispute, but  Jagat  Singh said  that they would settle it on the spot.   Baldev  Singh then give a ,spear blow to Bakhsheesh Singh, Gurbachan Singh gave him a gandasa blow on the head and Chain Singh beat him with  his lathi.  Thereafter the appellants ran  away.   The occurrence  was  witnessed by Ujagar Singh (P.W.  3),  Major Singh  (P.W.  2) and Jogendar Kaur, widow  of  the  deceased (P.W.  4) and Sadhu Singh, Sardari Singh and Prakash  Singh, who  were  servants of Ujagar Singh.  Bakhsheesh  Singh  was injured  in  the abdomen and his intestines came  out.   The injury  was  bandaged with the turbans of the  deceased  and

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Ujagar  Singh  and  he  was taken  to  the  police  Station, Afzalgarh,  where a first information report was  lodged  by Major  Singh  at  12.45 P.M. The police  sent  ’him  to  the hospital  at  Sherkot where Dr. Yogendra Pal (PW  4  in  the Committing Court) examined him.  From there he was taken  to the  District  Hospital,  Bijnor.   As  his  condition   was serious,  a  dying declaration (Ex.  Ke-8) was  recorded  at 9.30  P.M.  by the Tahsildar Magistrate, Shri  Balbir  Singh (P.W.  1).   Bakhsheesh Singh died next day,  September  18, 1964,   in  the  afternoon.   Postmortem   examination   was performed  by  Dr. P. P. Agarwal on  19th  September,  1964. According  to  the  Doctor  death  was  due  to  shock   and haemorrhage from the injuries. 893 It  appears  that Gurbachan Singh and Chain Singh  had  some Simple  injuries on their person but they did not report  to the police nor were they examined by Dr. K. C. Gupta (D.  W. 4) earlier than September 20, 1964, at 4.00 P. M. The  defence  plea is’ an absolute denial by  Bhajan  Singh, Baldeo Singh and Jagat Singh while Chain Singh and Gurbachan Singh gave a different version of the occurrence.  According to  Chain  Singh he and Gurbachan Singh were  grazing  their cattle  by the side of the canal when one Sardar  Singh  and Bakhsheesh  Singh came there.  Bakhsheesh Singh abused  them and  there  was grappling with him.  Major Singh  came  from behind with a karauli and gave him a blow with it.  When for the  second time Major Singh tried to assault him  with  the karauli in struck Bakhsheesh Singh.  According to  Gurbachan Singh  he tried to intervene and received lathi  blows  from Sardar Singh. The  prosecution relies upon, besides the medical  evidence, the  evidence  of  the three eye witnesses  as  noted  above namely,  PW 2, PW 3 and PW 4 and also upon the statement  of Sadhu  singh  recorded  in  the’  court  of  the  Committing Magistrate  and  admitted  in the Court  of  Sessions  under section  33  of the Evidence Act as well as upon  the  dying declaration  of Bakhsheesh Singh to establish  the  charges. The  High  Court has relied, as the Sessions  Judge  earlier did,  upon the evidence of the three eye witnesses  and  has found  that  their evidence was corroborated  by  the  dying declaration as well as by the medical’ evidence, as properly scanned by the courts. In  an  appeal under Article 136 of  the  Constitution  this Court  is  very  slow  to  interfere  with  the   concurrent conclusions  of  the  two courts below with  regard  to  the appreciation of evidence of the witnesses.  The accused must be  able  to  make out an extraordinary case  of  gross  and palpable injustice to induce us to take a contrary view from that arrived at by the High Court in this case. Even so, the learned counsel for the appellants submits that the  High Court has erred in relying upon the, testimony  of these  partisan witnesses since they are all related to  the deceased.   But  even  the deceased is  the  cousin  of  the appellant, Dhajan Singh. We have perused the evidence of the three eye witnesses  and could  not  find any ground to disbelieve  their  testimony. The learned counsel also could not draw our attention to any serious  infirmity  in the  evidence  except  characterising their testimony as interested.  Counsel further submits that their statements are falsified by the medical evidence.   He also  submits  that  the eye witnesses have  not  given  any explanation  for the injuries received by the  accused  and, therefore,  their  evidence should  be  rejected.   The-same grounds  were  also pressed into service  before  the  trial court and in the High Court and both the courts repelled the

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same with good reasons with which we concur. The  learned counsel contends that the common object of  the unlawful  assembly is only to beat Bakhsheesh Singh and  not to kill him.  He submits that even ’on the evidence accepted by  the High Court charge under section 302/149  I.P.C.  has not  been  established  against the  accused.   The  learned counsel draws our attention to the word ’maro’ 894 used  by the witnesses before the assault started.   On  the other  hand, our attention is drawn by the  learned  counsel for  the  State, to the F.I.R. where it  is  mentioned  that Jagat Singh said "let us settle the matter here.  What  will the  Patwari do?  Kill the sala".  Nothing turns  decisively on the word ’maro’ used by the witnesses and we have to  see the entire surrounding circumstances and the quick  sequence of events that immediately followed thereafter.  It is clear that all the five accused came armed with deadly weapons and one  of  them, namely, Bhajan Singh was the first  to  catch bold  of  the deceased and shouted "beat  the  sala",  while accused  Jagat  Singh  said that they would not  go  to  the Patwari  and  decide the matter on the spot.  He  also  said "beat thissala".  Thereupon Baldeo Singh gave a barchhi blow which  hit the deceased’s abdomen.  It is, therefore,  clear from  the  above  version, which has been  accepted  by  the courts below and which we have no reason to disbelieve, that the  five accused were members of an unlawful assembly  with the common object to kill Bakhsheesh Singh. .We do not  give much  importance  to the word ’beat’ used in the  charge  in this  case and we do, not think that the accused have,  been prejudiced  by such a recital in the charge from the  manner in  which  the defence was conducted in the trial  court  in answer to the evidence addressed by the prosecution. The  learned counsel strenuously contends that  the  accused cannot  be  convicted under section 3021/t49 I.P.C.  as  the common object of the assembly was not to kill the  deceased. The  learned  counsel, however., fails to take note  of  the fact that section 149 has got two limbs;               "If  an offence is committed by any member  of               an  unlawful  assembly in prosecution  of  the               common object of that assembly, or such as the               members of that assembly knew to be likely  to               be  committed in prosecution of  that  object,               every   person  who,  at  the  time   of   the               committing of that offence, is a member of the               same assembly, is guilty of that offence". Even  if, therefore, the accused were originally members  of an-unlawful assembly with the common object of only  beating Bakhsheesh Singh having come armed with deadly weapons, some with  spear  and  gandaisa  and some  with  lathis,  in  the desperate  manner they have done, and if the members of  the assembly  knew that by using these weapons  upon  Bakhsheesh Singh death would be caused, they are guilty of section  302 read  with section 149 I.P.C. There is not  circumstance  in the case which can bring down this case to one under section 304 I.P.C. The intention was clear to kill Bakhsheesh  Singh and all the accused are guilty of the offence charge namely, section 302/149 I.P.C. The learned counsel relied upon a decision of this court  in Shambhu Nath Singh and Others v. State of Bihar(1) and  also upon  another  decision  in  The  Queen  v.  Sabid  Ali  and Others(2).  We are unable to appreciate how these  decisions help  the  accused in the present case.  We  are  absolutely satisfied that all the five accused came armed (1) AIR (1960) S.C. 725.  (2) 1873 Weekly Reporter (20), 5. 895

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with deadly weapons despite the arrangement on the  previous day to accompany Major Singh and Bhajan Singh had agreed  to go to the PatWari.  By turn of events they took a  different posture to challenge Bakhsheesh Singh and party on their way to the Patwari, dealt with them in the manner they have done resulting  in the death of Bakhsheesh Singh.  We are of  the view that even the second limb of section 149 I.  P.  C.  is established on the evidence in this case. From   the   commencement  of  the   interception   of   the complainant’s party by the accused armed with deadly weapons and  first accosting of the deceased by Bhajan Singh with  a challenging  posture  upto  the running  away  of  the  five accused  together  after  causing  fatal  injuries  on   the deceased,  there is no escape from the conclusion  that  all the five accused came and worked with one design and  object and   they  were  definitely  in  the  know  of  the   fatal consequence  that,  actually  ensued  as  a  result  of  the conjoint  attack  to make them all  vicariously  responsible under section 149 I.P.C. Section 149 I.P.C. constitutes, per se a substantive offence although the punishment is under the section to which it  is tagged  being  committed by the principal  offender  in  the unlawful assembly, known or unknown.  Even assuming that the unlawful assembly was formed originally only to beat, it  is clearly established in the evidence that the said object  is well-knit  with  what followed as the dangerous  finale  of, call  it, the beating.  This is not a case  where  something foreign  or unknown to the object has taken place all  of  a sudden.  It is the execution of the same common object which assumed the fearful character implicit in the illegal action undertaken  by the five accused. (See also K. C. Mathew  and Others v. The State of Travancore-Cochin(1). Since  all the accused are convicted under  section  302/149 I.P.C.  there is no further necessity, in the  circumstances of  this case, for their separate conviction  under  section 147  and  148  of the Indian  Penal  Code.   Conviction  and sentence of Bhajan Singh, Chain Singh and Jagat Singh  under section 147 I.P.C. set aside.  The conviction of all accused under  section  302/149 I.P.C. and their  sentence  of  life imprisonment  on each of them are affirmed.  The  appeal  is dismissed subject to the above modification. We  may  conclude  by observing that this  murder  case  has resulted  in  conviction  in  spite of  the  police  at  the instance   of  a  private  complainant  who   made   serious allegations in court against the investigating agency. V.P.S.                        Appeal dismissed. (1) [1955] (2) S.C.R. 1057. -L84Su’pCI/75 896