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PETITIONER: JAGIR SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 21/03/1967

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SHELAT, J.M.

CITATION:  1968 AIR   43            1967 SCR  (3) 256  CITATOR INFO :  E          1973 SC 337  (24,27)

ACT: Indian  Penal Code 1860 (Act 45 of 1860),s 34-Two convicted other accused acquitted-Applicability.

HEADNOTE: The two appellants and four other named persons were charged for  murder.  The Sessions Judge acquitted the four  persons but sentenced the two appellants under ss. 302 and 201  read with s. 149 I.P.C. The High Court altered the convictions to those  under ss. 302 and 201 read with s. 34.  In appeal  to this Court, HELD: The appeal must be dismissed. Where  six  named accused persons are charged under  s.  302 read with s.   34  of the Indian Penal Code  for  committing murder and the evidence is    directed to establish that the said six persons have taken part in the murder and it is not known  who  gave the fatal blow, on the  acquittal  of  four persons  the remaining two accused can be convicted  of  the offence  under s. 302 read with s. 34.  Even if it  was  not known  which  particular person or persons  gave  the  fatal blows, once it was found that the murders were committed  in furtherance  of the common intention of an, each one of  all such  persons  was  liable as though the  murders  had  been committed  by him alone.  Section 34 is intended to  meet  a case  where members of a party acted in furtherance  of  the common  intention  of  all but it  was  difficult  to  prove exactly the part played by each of them.  Me principle which the  section  embodies is the participation in  some  action with  the  intention  of  committing  a  crime;  once   such participation  is established, s. 34 is ’at once  attracted. [260B; 260H-261B] Bharwad  Mepa  Dana  & Anr. v.  State of  Bombay,  [1960]  2 S.C.R. 172, applied. Prabhu Babaji Novle v. State of Bombay, A.I.R. 1956 S.C. 51, distinguished.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION Criminal Appeal No. 210  of

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1966. Appeal  by special leave from the judgment and  order  dated March  22, 1966 of the Punjab High Court in Criminal  Appeal No. 26 of 1966 and Murder Reference No. 2 of 1966. Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the  app- elants. Hans Rai Khanna and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Bachawat, J. Six persons including, the two appellants  were tried  for offences under s. 148, S. 302 read with  s.  1.49 and s. 201 257 read with S. 149 of the Indian Penal Code in connection with the murder of Tarlok Singh son of Amar Singh of Purana Pind. The  six  accused were (1) Jagir Singh of Purana  Pind,  (2) Tarlok Singh of Udhoke, (3) Wassan Singh of Purana Pind, (4) Jagir  Singh  of Bhumbli, (5) Dyal Singh of  Dalla  and  (6) Pritam  Singh of Dalla.  Tarlok Singh deceased was  brutally attacked on the threshing floor of Amar Singh at a  distance of eighty feet from his Haveli near the outskirt of  village Purana  Pind  on  April  27,  1965  at  about  4  p.m.   The prosecution  case was that all the six accused came  to  the spot with the object of killing Tarlok Singh, accused 5  was riding a white mare and carrying a spear, and the  remaining five  accused  were on foot and were armed with  kirpans  or swords.   Accused 5 shouted a challenge saying  that  Tarlok Singh must not be spared, accused 4 gave two kirpan blows on his  feet, accused I gave a sword blow on his neck  and  the other  accused  caused injuries to him  with  their  swords. When  the victim was almost dead, he was placed on the  mare in  front  of accused 5 and all the  six  accused  proceeded towards village Manobarpura.  At a distance of about a  mile near  the canal minor, the body of the victim was thrown  on the  ground  and accused 2 chopped the head from  his  body. Accused 2 and 5 rode away on the mare with the severed  head wrapped  in  the chaddar and turban of the  victim  and  the other  accused followed on foot.  The motive for the  attack was  that Munsha Singh father of accused I was  murdered  in July, 1964.  Amar Singh, Tarlok Singh deceased and one Sawan Singh were tried for the murder but they were convicted of a lesser offence for which they were sentenced to three months rigorous imprisonment.  They served out their sentences  and returned  to  village Purana Pind about  two  months  before April 27, 1965.  The first information report of the  murder of  Tarlok Singh was lodged on April 27, 1965 at  5.30  p.m. The  investigating  officer reached the spot at  about  6.30 p.m.  The  trunk of the dead body was recovered at  a  place about a mile distant from village Purana Pind near the canal minor.   The head was never recovered.  The identity of  the trunk   was  satisfactorily  established.   The   postmortem examination  revealed six injuries.  In the opinion  of  the medical witness, the death resulted from the cutting of  the neck, caused with some, sharp-edged heavy weapon.  The first information  report  stated that the  assailants  of  Tarlok Singh  were  accused 1, 3, 5, 6, one Harbans Singh  and  one Jarnail  Singh who were then said to have played  the  parts later  ascribed to accused 2 and 4. All the six accused  and Harbans  Singh and Jarnail Singh were  charge-sheeted.   The committing magistrate discharged Harbans Singh and.  Jarnail Singh  and committed the six accused to the  Sessions  Court for trial.  The four eyewitnesses examined at the trial were Amar  Singh,  father of the victim, Joginder  Singh  son  of Amar-  Singh,  Bachan Singh, son-in-law of  Amar  Singh  and Chhinda whose maternal uncle’s daughter was betrothed to the victim.  Amar Singh was injured

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258 by  one  of the culprits when he tried to intervene  in  the attack  on his son.  He made contradictory  statements  with regard  to the identity of the culprit who had (injured  him and  the six culprits who had participated in the attack  on his  son.  The Sessions Judge acquitted accused 2, 3, 4  and 6.  He  was not satisfied that the witnesses  had  correctly identified accused 2, 4 and 6. He gave accused 3 the benefit of  doubt  as the evidence of the  witnesses  regarding  his presence  not  corroborated by other evidence.   The  courts below  found  that  there could be  no  -mistake  about  the identity of accused 1 and 5. With regard to their  identity, the  veracity of Amar Singh was not shaken and the  evidence of the three other eyewitnesses was consistent positive  and unimpeachable.   Accused I made a disclosure  statement  and pointed out a place near the bank of the canal about a  mile or  a mile and a half from the place where the trunk of  the dead  body had been found.  Four pieces of teeth, one  piece of skull bone and hair recovered from the place pointed  out by  accused  I were found to be of human origin.   There  is reason  to believe that the severed head of the  victim  was cut  to pieces at the spot.  A kirpan was also recovered  in consequence  of the disclosure statement made by accused  1, but  the High Court placed no reliance on this discovery  as it was not known to whom the place of recovery belonged.   A chaddar  was  recovered from accused 1 at the  time  of  his arrest.   The chaddar had been washed but on examination  by the  chemical examiner and seriologist it was found that  it had  stains  of  human blood.  Both accused 1 and  5  had  a strong  motive  for  the murder.  Though  the  courts  below discarded  a  part  of the prosecution story  and  gave  the benefit  of  doubt to four accused, they were  justified  in accepting  the prosecution case regarding the  participation of accused 1 and 5 in the attack on the victim. The Sessions Judge convicted accused 1 and 5 of the offences under  ss. 302 and 201 read with s. 149 of the Indian  Penal Code  and  sentenced them to death and five  years  rigorous imprisonment.   The  High Court altered the  convictions  to those  under  ss. 302 and 20 read with s. 34 of  the  Indian Penal  Code  and confirmed the sentences.  Accused 1  and  5 have now filed this appeal to this Court.     The High Court recorded the following finding: ,lm15               "The  finding, therefore, in concurrence  with               that  of the learned trial Judge, is that  six               persons, of whom appellant Dyal Singh of Dalla               was  armed  with a spear and was riding  on  a               mare  and  the  five others  were  armed  with               Kirpans,  including appellant Jagir  Singh  of               Purana Pind, arrived at the threshing floor of               Amar  Singh  P.W. 1, that there  Tarlok  Singh               deceased received injuries at their 259               hands, a particular injury in the head  region               having been caused by appellant Jagir Singh of               Purana  Pind, that when Tarlok Singh  deceased               was  almost dead or near death, his dead  body               was  placed on the mare in front of  appellant               Dyal Singh of Dalla, and six culprits, includ-               ing   the  two  appellants,  then   left   the               threshing  floor  towards  the  nearby   canal               minor,  and  that at a distance of  about  one               mile from the village on the bank of the canal               minor  the body of Tarlok Singh  deceased  was               thrown  on the ground, the head was  cut  off,

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             and  while appellant Dyal Singh of  Dalla  and               another culprit carried the head on the  mare,               the remaining four culprits accompanied  them,               and  thus all the six culprits, including  the               two appellants, escaped.  So the six culprits,               including  the  two appellants  came  together               armed,  committed the murder of  Tarlok  Singh               deceased, were together when his head was  cut               off  and then departed together with the  head               of  Tarlok  Singh deceased  being  carried  by               appellant Dyal Singh of Dalla and another on a               mare.  It is obvious that what was done by all               the six persons, including the two appellants,               was  done  in  furtherance  of  their   common               intention  to  murder Tarlok  Singh  deceased,               which  common intention was carried  out  with               determination  and  it is a case  of  gruesome               murder.   It is a clear case to which sec.  34               applied......  Taking into  consideration  the               manner  and method of murder of  Tarlok  Singh               deceased  by  the appellants  and  their  four               companions  as a whole from start to the  end,               the appellants, about whose identity there  is               no  manner of doubt whatsoever, cannot  escape               the  consequences  of the act of all  the  six               persons merely because in the case of three of               those  who  have been  acquitted  the  learned               Judge  has  not  been satisfied  as  to  their               identity and the fourth he has acquitted on  a               consideration  that  as  no  corroboration  is               available as to him of the witnesses he may be               given the benefit of doubt.  The matter  might               have  been different if the learned Judge  had               disbelieved the witnesses with regard to those               four persons, but this he has not done." The   charge  against  the six accused  including   the  two appellants  was  that  they  were  members  of  an  unlawful assembly  whose  common object was to commit the  murder  of Tarlok  Singh deceased and that they in prosecution of  this common  object committed the murder.  The materials  on  the record  show  clearly that the murder was committed  by  six culprits including the two appellants in furtherance of  the common  intention of all.  In the circumstances, though  the appellants  were charged of an offence under ss.  302/  149, they could be convicted under ss. 302/34.  No prejudice  was L5Sup.  CI/67-4 260 caused  to  the appellants by the alteration of  the  charge from an offence under ss. 302/149 to one under s. 302/34. The contention of the appellants is that in a case where six named accused persons, A, B, C, D, E and F are charged under s.  302  read  with  s. 34 of  the  Indian  Penal  Code  for committing  the murder of G and the evidence is directed  to establish  that the said six persons have taken part in  the murder  and it is not known who gave the fatal blow, on  the acquittal of C, D, E and F the remaining two accused A and B cannot be convicted of the offence under s. 302 read with s. 34.  We are unable to agree with this contention.  As it  is not  known  that A or B gave the fatal blow they  cannot  be convicted  under s. 302.  Nor is it possible to find that  A and  B  together with C, D, E and F  jointly  committed  the murder.   Since  C, D, E and F have been  acquitted  of  the charge  they  could  not have participated  in  the  murder. Unless the court can find that other unidentified assailants together with A and B took part in the murder, A and B  must

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be  acquitted of the offence under s. 302 read with  s.  34. But if the court can, on a proper appraisal of the  evidence find  that  there were six assailants,  the  witnesses  were mistaken  as  to  the identity of C, D, E and  F,  and  four unknown  culprits  together with A and B took  part  in  the murder  in furtherance of the common intention of  all,  the court  can convict A and B of the offence under s. 302  read with s. 34.  Though it is not known who gave the fatal blow, each of the assailants including A and B is responsible  for the murder as if it was committed by him alone. In  Bharwad Mepa Dana and another v. State of  Bombay(1)  12 named persons including the two appellants were charged with offences under s. 302 read with ss. 149 and 34 of the Indian Penal  Code.   The  Sessions Judge acquitted  seven  of  the accused but convicted five under s. 302 read with s. 149 and s. 302 read with s. 34. On appeal, the High Court  acquitted one  of  the  five  convicted  persons  but  maintained  the conviction  and  sentence  of the  appellants  and  the  two others.  The High Court held that there were ten to thirteen persons in the unlawful assembly though the identity of  all the persons except four had not been established, all  these persons  had the common object and the common intention  ,of killing the victims and the killing was done in  prosecution of  the  common  object  of the  unlawful  assembly  and  in furtherance  of  the common intention of  all.   This  Court affirmed the convictions and sentences.  It held that  there was no difficulty in the application of s. 34 of the  Indian Penal  Code as the number of the convicted persons was  four and  there was a clear finding that they shared  the  common intention   with   some  others  whose  identity   was   not established.  Even if it was not known which parti- (1)  [4960]2 S.C.R. 172 261 cular  person or persons gave the fatal blows, owe  it  war. found that the murders were committed in furtherance of  the common  intention of all, each one of all such  persons  was liable  as  though  the murders had been  committed  by  him alone.  Section 34 is intended to meet a case where  members of  a party acted in furtherance of the common intention  of all but it was difficult to prove exactly the part played by each  of them.  The principle which the section embodies  is the  participation  in  some action with  the  intention  of committing a crime; once such participation is  established, s. 34 is at once attracted. The  case  of Prabhu Babaji Navle v. State of  Bombay(1)  is distinguishable.   There the appellant Was charged under  S. 302  read  with s. 34 with four named  persons.   The,  four others  were acquitted.  This Court held that the  appellant alone  could  not be convicted of the offence under  s.  302 read  with  S. 34.  On the facts of that case,  it  was  not possible  to reach a conclusion that the appellant shared  a common intention with other unknown person or persons.   The case  of Krishna Govind Patil v. State of Maharashtra(2)  is also  distinguishable.   Them,  four  accused  persons  were charged  under  s.  302 read with S.  34.   The  High  Court acquitted  accused  1,  3 and 4 on the ground  that  it  was doubtful  whether  any  one  of  them  participated  in  the commission of the offence and yet convicted accused 2 on the ground  that one or more of them might have participated  in the  offence.   The finding recorded by the High  Court  was legally  impossible.  Having found that accused 1, 3  and  4 did  not take part in the offence, the High Court could  not find that one or more of them might have participated in the offence  with accused 2. There was not a single  observation in  the  judgment  of the High Court to  indicate  that  any

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person or persons other than the named accused  participated in  the  offence.  In these circumstances,  this  Court  set aside the conviction of accused 2. In  the  present case, the Courts below  have  recorded  the clear  finding  that  accused 1 and 5  participated  in  the offence with four other unknown culprits.  Though six  named persons  were charged with the offence, there was a  mistake in  the identity of three of the accused and with regard  to another  accused,  the  benefit of doubt  was  given  as  no independent  corroboration was available.  But it admits  of no  doubt  that  Tarlok  Singh  was  attacked  and  brutally -murdered on April 27, 1965 by six culprits.  Accused 1  and 5  were  two  of the six culprits who  participated  in  the attack.  The murder was committed by six culprits  including accused  1 and 5 in furtherance of the common  intention  of all.   Accused 1 and 5 shared the common intention with  the four other culprits whose identity has not been established. Though it is not known which (1) A.I.R. 1956 S.C. 51. (2) [1964] 1 S.C.R. 678. 262 particular person or persons gave the fatal blow it is clear that  the  murder was committed by  six  culprits  including accused  1 and 5 in furtherance of the common  intention  of all  and each of them is liable for the murder as though  it had been committed by him alone. Accused 1 and 5 were rightly convicted of the offence  under s. 302 read with S. 34 of the Indian Penal Code.  The murder was  ruthless  and cold-blooded.  There are  no  extenuating circumstances.  They were rightly sentenced to death.   They were  also rightly convicted and sentenced for  the  offence under s. 201 read with s. 34 of the Indian Penal Code. The appeal is dismissed. Y.P.                                                  Appeal dismissed. 263