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PETITIONER: KARNAIL SINGH AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF PUNJAB.

DATE OF JUDGMENT: 09/01/1953

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA BHAGWATI, NATWARLAL H. JAGANNADHADAS, B.

CITATION:  1954 AIR  204            1954 SCR  904  CITATOR INFO :  D          1955 SC 274  (11)  RF         1956 SC 116  (49,77)  R          1956 SC 238  (7)  R          1956 SC 546  (5)  C          1965 SC 328  (9)  F          1973 SC2221  (12)  F          1990 SC1982  (3)

ACT:  Indian  Penal Code (Act XLV of 1860), ss. 34  and  149-Scope  of-Charge under s. 302 read with s. 149-Conviction under  s.  302 read with s. 34-Whether valid.

HEADNOTE: 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 necessary under s. 34 to  establish  a common intention and that therefore when the charge  against the  accused was under s. 149, it could not be converted  in appeal into one under s. 34. Held, that it is true that there is ’substantial  difference between  the  two  sections but they  also  to  some  extent overlap  and it is a question to be determined on the  facts of  each case whether the charge under s. 149  overlaps  the ground  covered by s. 34. If the common object which is  the subject-matter   of  the  charge  under  s.  149  does   not necessarily   involve   a   common   intention,   then   the substitution  of s. 34 for s. 149 might result in  prejudice to the accused and ought not therefore to be permitted.  But if  the  facts to be proved and the evidence to  be  adduced with reference to the charge under s. 149 would be the  same 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. Whether  such recourse can be had or not must depend on  the

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facts of each case. The facts of the present case warranted such a recourse. Dalip  Singh  v.  State of Punjab (A.I.R.  1953  S.C.  364), Bareizdra Kumar Ghosh v. Emperor (I.L.R. 52 Cal. 197  P.C.), Lachman Singh v. The State ([1952] S.C.R. 839) referred to.

JUDGMENT: CRIMINAL APPIELLATE JURISDICTION: Criminal Appeal No. 64  of 1953. Appeal  by special leave from the Judgment and  Order  dated the 9th June, 1953, of the High Court of Judicature for  the State of Punjab at Simla (Falshaw and Kapur JJ.) in Criminal Appeal No. 60 of 1953 905 Arising  out  of  the  Judgment and  Order  dated  the  15th December,  1952,  of, the Court of the  Additional  Sessions Judge, Ferozepore, in Sessions Case No. 50 of 1952 and Trial No. 57 of 1952. Jai Gopal Sethi (R.  L. Kohli, with him) for the appellants. Porus A. Mehta for the respondent. 1954.  January 29.  The Judgment of the Court was  delivered by VENKTARAMA  AYYAR J.-This is an appeal by special  leave  by Karnail Singh and Malkiat Singh against the judgment of  the High  Court  of Punjab confirming their  conviction  by  the Additional  Sessions Judge of Ferozepore under section  302, Indian  Penal  ,Code, and the sentence of  death  passed  on them. The facts as found by the courts below are as follows: There had  been  long standing enmity between the  appellants  and their party on the one hand and the deceased Gurbaksh  Singh and his party on the other, resulting in a number of crimes, and  proceedings  in court.  On the 27th Januarv.  1952,  at about  sunset  time, Gurbaksh Singh was sitting  inside  his house  on the sabath and his sister Mst.  Bholan was in  the kitchen.   Then  the appellants and their men  came  to  the place  armed  with rifles, got on the roof of the  house  of Gurbaksh  Singh  and challenged him to come  out.   Gurbaksh Singh and Mst.  Bholan went to the kotha and bolted the door from  inside.  Then the appellants and their men made  holes in the roof with spades, ignited inflammable materials, such as  dry twigs, and threw them inside the kotha  through  the holes and set fire to the building.  Both 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 to the prosecution, seized when he subsequently turned up, thrown into the flames and was  also burnt  to  death.   Meantime one Gurnam Singh,  P.W.  13,  a cousin of Gurbaksh Singh and his neighbour, managed to  slip out of the village and reported the occurrence at the police station at Nihal Singhwala, 906 a place eight miles away (vide Exhibit PQ).  It was then 10- 30  p.m.  On receipt of this information,  the  police  sub- inspector,  P.W.  25, went to the village with  a  posse  of constables  and  with Gurnam’ Singh.  He  found  the  ,house mostly burnt and recovered therefrom the charred remains  of three  dead  bodies  and they were identified  as  those  of Gurbaksh, Dev and Mst.  Bholan.  The appellant Karnail Singh was  actually seen at that place and arrested on  the  spot. Malkiat Singh who had been mentioned in Exhibit PQ as one of the participants was found in his house with gunshot  wounds and was also arrested.  Eventually eight persons,  including

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the appellants, were charged under section 148, Indian Penal Code,  for forming an unlawful assembly with the  object  of burning  the house of Gurbaksh Singh and murdering him,  Dev and  Mat.  Bholan, and under section 302 read  with  section 149  for  their  murder.   The  Additional  Sessions  Judge, Ferozepore,  held  that the case had  not  been  established beyond   doubt  as  against  two  of  the  accused  and   he accordingly  acquitted  them.  He convicted the  six  others including  the appellants under section 148 and 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 doubt  whatever  that  the occurrence took place more or less on the lines described by the  prosecution  witnesses, and the primary object  of  the culprits must have been to murder Gurbaksh Singh,  deceased, in 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   this occurrence "  , the evidence against the four  accused other than  the  appellants  was  insufficient  to  sustain  their conviction, as it consisted of the testimony of persons  who were  at  a  distance of 40 to 50 feet  from  the  scene  of occurrence  and  who  claimed  to  identify  the  particular accused   only  by  their  voice.   They  were   accordingly acquitted.   Then  dealing  with the case  against  the  two appellants  they  observed that as against them,  there  was evidence  of the two eyewitness Gurnam Singh (P.W.  13)  and Maghar Singh 907 (P.W.  14),  that Maghar Singh was not a  reliable  witness, that  nothing could be urged against the evidence of  Gurnam Singh, that even so it would be Unsafe to base a  conviction on  his  evidence alone, but that the  presence  of  Karnail Singh at the spot and the existence of wounds on the  person of  Malkiat Singh afforded sufficient corroboration  of  the evidence  of Gurnam Singh.  They accordingly  confirmed  the conviction and sentence as against the appellants.  As  four of the accused were acquitted in appeal, the learned  Judges set aside the conviction of the appellants under section 149 and substituted section 34, Indian Penal Code, there for. Two contentions have been urged on behalf of the appellants, that  the  evidence which bad been accepted by  the  learned Judges  as reliable was insufficient to establish the  guilt of,  the appellants and that their conviction under  section 34  was bad as no charge had been framed against them  under that  section.   On  the first point, the  argument  of  the learned counsel for the appellants was that having held that the  only eye witness whose evidence was worthy of  credence was  P.W. 13, and that even his evidence could not be  acted upon unless it was corroborated, the learned Judges were  in error  in holding that there was such corroboration  against the  appellants.   The circumstance relied on by  the  court below as corroborating the evidence of P.W. 13 was that  the appellants were proved to have been present at the scene  of occurrence  and there was no satisfactory  explanation  from them  there for.  As regards Karnail Singh, the police  sub- inspector,  P.W. 25, actually found him emerging out of  the burning house with a spear in his hand.  He had injuries  on his person and his pyjama was bloodstained.  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 PQ, and P.W. 25 went to his house and found him with gunshot wounds and arrested him.  In the statement given by  Karnail Singh under section 342, Criminal Procedure Code, he  stated

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that when he saw the house 908 of   Gurnam Singh on fire, he went there and was,  assaulted by culprits, that Malkiat Singh came there to help him, that when  they were grappling with the culprits he was  attacked and  Malkiat, Singh received a gunshot and  thereafter  they went  away to their houses.  The statement of Malkiat  Singh also  was on similar lines.  There was no evidence that  any other  person or persons were responsible for the  acts  and the   learned  Judges  therefore  rejected  as  untrue   the explanation  of  the appellants that  "they  received  these injuries  while intervening against some unknown  assailants on behalf of their bitterest enemy." It is contended for the appellants that the mere presence of Karnail  Singh  at the place of occurrence would  in  itself mean nothing and that it would amount to corroboration  only if  some further act incriminatory in character was  proved. With  reference  to Malkiat Singh, it was  argued  that  the existence  of gunshot wounds would be inconclusive as  there was  no evidence as to how they were caused.  It  was  ’con- tended that, the theory of the learned Judges that  Gurbaksh Singh  might himself have shot at him trough the hole  while he  was on the roof was. wholly unsupported by evidence  and opposed to the medical evidence in the case as to the nature of the wounds and to the fact that no gun was recovered from the house, and that there was accordingly nothing to connect Malkiat  Singh  with the incident at the house  of  Gurbaksh Singh.   With  reference to the statements  of  the  accused admitting  their presence at the place but  explaining  that some  culprits had set fire to the house and that they  went there thereafter, it was argued that if the statements  were to be taken into consideration they must be taken as a whole and  that  it  was not proper to  accept  the  incriminating portion, and reject the exculpatory portion thereof and  the observations  of this court in Hanumant v. State  Of  Madhya Pradesh(1),  at page 1111 were relied on in support of  this position.   The result according to the appellants  is  that there was not sufficient (1)  [1952] S.C.R. 1091. 909 corroboration  of the evidence of P. W. 13 to support  their conviction. It  is necessary in view of this contention to  examine  the evidence in order to see what corroboration there is against each  of  the  appellants.   So  far  as  Karnail  Singh  is concerned, his presence at the scene of occurrence under the circumstances  disclosed  in the evidence is  sufficient  to corroborate  the  evidence  of  P.  W.  13.   It  should  be remembered  that  Gumam Singh is not an approver.  He  is  a witness  against whom the learned Judges had nothing to  say and  if they required corroboration of his evidence  it  was because  he  was  a  relation of the  deceased  and  it  was considered  not  safe  to  base a  conviction  on  his  sole testimony. ,The corroboration that is required in such cases is not what would be necessary to support the evidence of an approver but what would be sufficient to ,lend assurance  to the  evidence  before  them,  and  satisfy  them  that   the particular  persons were really concerned in the  murder  of the  deceased." (Vide Lachhman Singh v. State(1)).   Karnail 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. The  case of Malkiat Singh presents greater difficulty.   He was arrested in his house with gunshot wounds on his  person

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and  unless it could be established that they were  received at  the scene of occurrence that would not be sufficient  to connect  him with the crime.  We agree that the  mention  of his  name  in  Exhibit PQ cannot be held  to  be  sufficient corroboration because that is only the statement of P. W. 13 at  an  earlier stage and it is  not  independent  evidence. With reference to the statement of the accused under section 342,  Criminal  Procedure  Code, it is true that  if  it  is sought  to  be  used as an admission it must be  read  as  a whole;  but  where  it consists  of  distinct  and  separate matters,  there is no reason why. an admission contained  in one matter should not be relied on without reference to  the statements relating to other matters.  In this case the (1)  [1952] S.C.R. 839 at P. 845. 910 admission  of the appellant that he was present at  or  near the  scene of occurrence is distinct and separate  from  his explanation as to how he received the injuries.  The learned Judges  having  disbelieved,  in our  opinion  rightly,  the statement of the. appellant that the house was burnt by some 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 that in their view the gunshot wounds must have been received  by Malkiat  Singh  at the house of Gurbaksh Singh.   They  gave their  finding  on  this point  in  the  alternative.   They observed  that  the  injuries  might  have  been  caused  by Gurbaksh  Singh firing from inside the house.  But  of  this there  is  no evidence and the medical evidence is  in  fact opposed  to it and as already stated, no gun  was  recovered from  the house of the deceased.  In the, alternative,  they observed that the injuries might have been caused by a  shot from  one  of his own men.  This view is  supported  by  the evidence  of  p.W. 14 who deposed that while  the  incidents were in progress Malkiat Singh stated that he had been  shot by one of his own men and then left the place.  It is argued 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 as unsupported by evidence.  What all  the learned  Judges  remarked about P. W. 14 was that it  was  " impossible  to  place  any very  great  reliance  on  Maghar Singh’s evidence." But then they also expressly referred  to his evidence on this point (Vide page 61 of the record)  and accepted it as one of the possible alternatives (Vide,  page 65).  And on their finding that the injuries must have  been received  at  the place of occurrence and  the  theory  that Gurbaksh  Singh fired the shot being negatived, there is  no difficulty in holding that they were prepared to accept  the evidence  of P. W. 14 on this point.  Thus there  are  ample materials for holding that the gunshot wounds were  received by Malkiat Singh in the house of Gurbaksh Singh and 911 that  is sufficient corroboration of the evidence of  P.  W. 13.  In this view we must overrule the first contention. Then  the  next question is whether the  conviction  of  the appellant under section 302 read with section 34, when  they had  been charged only, under section 302 read with  section 149,  was illegal The contention of the appellants  is  that the  scope of section 149 is different from that of  section 34,  that  while  what section 149 requires is  proof  of  a common  object,  it would be necessary under section  34  to establish  a  common intention and that therefore  when  the charge  against the accused is under section 149, it  cannot

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be  converted  in  appeal into one under  section  34.   The following observations of this court in Dalip Singh v. State of Punjab(1) were relied on in support of this position :- "  Nor  is  it possible in this case  to  have  recourse  to section 34 because the appellants have not been charged with that  even  in  the alternative  and  the  common  intention required  by  section 34 and the common object  required  by section 149 are far from being the same thing.  " It is true that there is substantial difference between  the two  sections  but as observed by Lord  Sumner  in  Barendra Kumar Ghosh v. Emperor(1), they also to some extent  overlap and  it is a question to be determined on the facts of  each case  whether  the  charge under section  149  overlaps  the ground covered by section 34.  If the common object which is the  subjectmatter of the charge under section 149 does  not necessarily  involve  a  common intention,  then  the  subs- titution  of  section  34 for section 149  might  result  in prejudice  to  the  accused and ought not  therefore  to  be permitted.   But if the facts to be proved and the  evidence to be adduced with reference to the charge under section 149 would be the same ’if the charge were under section 34, then the failure to charge the accused under section 34 could not result in any (1)  A.I.R. 1953 S.C. 364 at P. 366. (2)  I.L.R. 52 Cal. 197 (P.C.). 912 prejudice  and in such cases,the substitution of section  34 for  section 149 must be held to be a formal matter.  We  do not  read  the  observations in Dalip  Singh  v.  State,  of Punjab(1) as an authority for the broad proposition that  in law  there  could  be no recourse to, section  34  when  the charge is only under section 149.  Whether such recourse can be  had or not must depend on the facts of each case.   This is  in accord with the view taken by this court in  Lachhman Singh v. The State(1), where the substitution of section  34 for section 149 was upheld on the ground that the facts were such   "   that  the  accused.  could  have   been   charged alternatively  either  under section 302 read  with  section 149, or under section 302 read with section 34." Examining  the record from this point of view, the  findings are  that both the appellants who had long  standing  enmity with  Gurbaksh Singh, got on the roof of his house  and  set fire  to  it,  with the deceased and  Mst.Bholan  couped  up within.   If it was their object under section 149  to  burn the  house and cause the death of Gurbaksh Singh,  that  was also their intention under section 34.  On the facts of this case  there can be no difference between the object and  the intention  with  which  the offences  were  committed.   Our attention was also drawn to the wording of the charge  which while   mentioning  section  149  also  sets  out  that   in prosecution  of the common object the accused  intentionally set  fire to the house and murdered Gurbaksh Singh and  Mst. Bholan.  We are. satisfied that the substitution of  section 34  in the place of section 149 in the charge by  the  court below  has resulted in no prejudice to the appellant and  it is therefore not open to objection. The appeal fails and is dismissed.                      Appeal dismissed. Agent for the appellants: Naunit Lal. Agent for the respondent: R. H. Dhebar. (1)  A.I.R. 1953 S.C. 364. (2)  [1952] S.C.R. 839.       913

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