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PETITIONER: SUKH RAM

       Vs.

RESPONDENT: STATE OF U. P.

DATE OF JUDGMENT28/11/1973

BENCH: DWIVEDI, S.N. BENCH: DWIVEDI, S.N. CHANDRACHUD, Y.V.

CITATION:  1974 AIR  323            1974 SCR  (2) 518  1974 SCC  (3) 656  CITATOR INFO :  R          1974 SC1567  (6)  R          1975 SC1917  (11)  RF         1976 SC1084  (17)  F          1991 SC 318  (16)

ACT: Penal  Code-S.  302 read with s. 34-Two of the  three  named accused acquitted--Whether the third could be convicted with the aid of s. 34.

HEADNOTE: The  appellant,  along  with two others, was  tried  for  an offence under s. 302, I. P. C. read with s. 34, IC P. C. The Sessions Judge acquitted one of the accused, while the  High Court acquitted another but the appellant was convicted  and sentenced.   The  charge  specifically  mentioned  that  the murder was committed by the three accused named therein. In  appeal  to this Court it was contended  that  after  the acquittal  of  two of the three accused ’by the  two  courts below, the appellant could not be convicted with the aid  of s. 34, I. P. C. Dismissing the appeal, HELD:In view of the unambiguous evidence the Sessions  Court no  prejudice  can  be  said to  have  been  reason  of  his conviction   under   s.302  read  with  s.   other   accused specifically  named in the v charge had been adopted by  the appellant  disclosed an awareness on his true nature of  the allegations levelled against him. participation in the crime to  three named individuals the murder was committed by  the appellant and two other persons, the fatal shot having  been fired  by  one of the two. tendered by  the  prosecution  in caused to the appellant by 34. I. P. C. even though the  two acquitted. The defence  part of the substance and Though the charge  confined  evidence  was  led  to  show  that   While examining  him under s. 342, Cr.  P. C. the  Sessions  Judge questioned  him in regard to his participation in the  crime along  with his companions not along with the two named  co- accused.   The High Court was certain that there were  three culprits  and  the appellant was one of them.  It  is  clear that  notwithstanding the charge, the acquittal of  the  two accused  raised  no bar to the conviction of  the  appellant under  s.  302  read with s. 34.  I. P. C.  A  possible  pre

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judice  to the accused, on a reasonable view of the  course- the  trial  had  taken,  was the  true  touchstone  of  such matters. [519G-H; 520B&E] Dalip  Singh  v.  State  of Punjab, [1954]  S.  C.  R.  145. Bharwad Mepa Dana v. State of Bombay, [1960] 2 S.C. R.  172; Kartar Singh v. State of Punjab, [1962] 2 S.C.R. 395, relied on Mohan Singh v. State of Punjab, [1962] Suppl. 3 S.C.R.  848, and  Krishna Govind Patil v. State of Maharashtra, [1964]  1 S. C. R. 678, distinguished.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 99 of 1970. Appeal  by Special Leave from the Judgment and  Order  dated the  28th  January  1970  of the  Allahabad  High  Court  in Criminal Appeal No. 1888 of 1967. D.Mukherjee, A. T. M. Sampath and E. C. Agrawala, for the appellant. D. P. Uniyal and O. P. Rana, for the respondent The Judgment of the Court was delivered by DWIVEDI  J.-Three persons, Mahendra Singh, Lakhan Singh  and the  appellant  Sukh Ram, were tried for the murder  of  one Chunni  Lal  under s. 302 read with s. 34. I. P. C.  by  the Sessions  Judge,  Aligarh.   The  Sessions  Judge  acquitted Mahendra  Singh, and convicted and sentenced  the  remaining two to imprisonment for life.  On appeal the 519 High Court of Allahabad acquitted Lakhan Singh and  affirmed the  conviction and sentence of the appellant.   Hence  this appeal. The  deceased Chunni Lal has a tea stall near the Bus  Stand in Sasni.  He was shot dead on 9-3-1967 at about 10-30  p.m. The: First Information Report of the incident was lodged  by Sunder  Lal,  a relation of the deceased.   The  prosecution examined  Sunder  Lal,.  Radhey Shyam, Puran  Mal  and  Devi Prasad to prove its case against the aforesaid accused.  The Sessions Judge believed all the witnesses.  In a careful and sifting  analysis  of  the  entire  evidence,  the  learned. Judges  of  the High Court (S.  D. Khare  and  Jagmohan  Lal Sinha  JJ.)  have  winnowed out  all  evidence  which  could legitimately  be objected to by the appellant and have  held that  the remaining evidence clearly brought home the  guilt to  him.  Counsel for the appellant could not point out  any infirmity  in  their  opinion.   We  have  read  the  entire evidence, and we are satisfiEd that they have rightly  found the appellantguilty of the murder of Chunni Lal. Counsel  for the appellant has, however,  strenuously  urged before.us  that  after the acquittal of Mahendra  Singh  and Lakhan Singh,. the appellant could not be convicted with the aid of s. 34 I.P.C. The charge framed by the Sessions  Judge reads:               "I........... Sessions Judge, Aligarh,  hereby               charge you Sukh Ram S/o Hari Ram, Lakhan Singh               s/o  Biri Singh and Mahenara Singh  s/o  Gulab               Chand as follows:               That  you  on the 9th day of March,  1967,  at               about 10.30 p.m. in the town of Sasni near the               bus  stand  at  the- shop  of  Chunni  Lal  in               furtherance of your common intention which was               to commit the murder of Chunni Lal, did commit               the  murder  of  Chunni Lal,  did  commit  his               murder  by  one of you firing at him  with  a-

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             pistol,  as  a  result  of  which  Chunni  Lal               immediately   fell  down  dead,  and   thereby               committed  an offence punishable under s.  302               read   with  s.  34  I.P.C.  and  within   the               cognisance of this Court." Thus  the  charge specifically mentions that the  murder  of Chunni Lat was committed by the three accused named therein, namely,  MahendraSingh, Lakhan Singh and the appellant  Sukh Ram.   It does not mention that any other persons, known  or unknown,  were concerned in the commission of  the  offence. But  in  view of the unambiguous evidence  tendered  by  the prosecution in the Sessions Court, no prejudice can be  said to  have  been  caused to the appellant  by  reason  of  his conviction  under  section 302 read with section  34,  Penal Code,  even though the two other accused specifically  named in the charge have been acquitted.  Indeed, the very line of defence adopted by /theappellant, as reflected in the cross- examination  of  the prosecution.  witnesses,  discloses  an awareness  on his part of the substance and true  nature  of the  allegations levelled against him.  Though  the  charge, confines   participation  in  the  crime  to   three   named individuals,  evidence was led to show that Chunni  Lal  was murdered by the 520 appellant and two other persons, the fatal shot having  been fired  by one of these two.  At the trial, the heart of  the issue therefore was whether there was evidence to prove that the  appellant  and two others had, in  pursuance  of  their common  intention,  committed the murder In fact,may  be  by reason  of the variance between the terms of the charge  and the trend of the evidence, the learned Sessions Judge  while examining  the appellant under s. 342 Cr.  P. C.  questioned him  in regard to his participation in the crime along  with his  "companions", not along with the two named  co-accused. On the central issue arising in the case, the Sessions Court found : "This direct evidence taken as a whole proves beyond any  reasonable  doubt that Sukh Ram along  with  two  other companions  had gone to Chunni Lal’s shop at that  time  and one  of  his companions fired at Chunni Lal  with  a  pistol while Chunni Lal was closing his shop." The High Court acquitted Lakhan Singh because it thought  it unsafe  to rely on the sole testimony of Kunwarji in  regard to Lakhan Singh’s identification.  But the learned Judges of the  High Court were certain, and we are in  agreement  with their view, that there were three culprits, appellant  being one of those three.  This is what the High Court says :  "We are, therefore, of the opinion that it is fully  established that Sukh Ram was amongst the three assailants of Chunni Lal and  that the pistol was fired at Chunni Lal in  furtherance of the common intention of all the three assailants." It is, therefore,  clear  that  notwithstanding  the  charge,   the acquittal  of Mahendra Singh and Lakhan Singh raises no  bar to the conviction of the appellant under s. 302 read with s. 34.   A possible prejudice to the accused, on  a  reasonable view  of the course the trial has taken, is the true  touch- stone  of such matters and we have warned ourselves of  that danger  before coming to the conclusion that the High  Court is right in the view it has taken. in  Dalip  Singh  v. State of Punjab(1)  four  persons  were convicted  under s. 302 read with s. 149 I. P. C. They  were tried along with three other persons but those three persons were  acquitted  by the High Court.  The  argument  in  this Court   was  similar  to  the  one  before  us.  The   First Information   Report   had  specifically  named   the   four appellants  and  the three acquitted accused.   It  did  not

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state  that any other person or persons had participated  in the  crime  with  them.  It was, therefore, not  a  case  of mistaken   identity.    Accordingly  the   appellants   were acquitted  by  this Court.  While acquitting them,  Bose  J. took care to observe at a page 151 of the Report :               "Now   mistaken   identity  has   never   been               suggested.   The  accused are all men  of  the               same village and the eyewitnesses know them by               name.   The murder took place in daylight  and               within  a few feet of the  two  eye-witnesses.               If the witnesses had said : "I know there were               five assailants and I am certain of A. B. C. I               am not certain of the other two but think they               were  D  and E" a conviction of A.  B.  and  C               provided the witnesses are believed, would  be               proper." (1) [1954] S.C.R. 145. 521 In Bharwad Nepa Dana v. State of Bombay(1), 12 persons  were tried  by  the Sessions Judge for the offence under  s.  302 read  with  s. 149 I. P. C. He acquitted seven of  them  and convicted   the  remaining  five.   The  convicted   persons appealed to the High Court.  The High Court acquitted one of them and affirmed the conviction of the remaining four.   On appeal the argument before this Court was similar to the one before us.  The High Court had recorded this finding               "From  the prosecution evidence, there  is  no               doubt  whatsoever that more than five  persons               were operating at the scene of offence, though               the  identity of all the persons has not  been               established  except the accused nos. 1,  2,  3               and  11. There is no doubt on the  prosecution               evidence that more than five persons i.e.,  as               many  as ten to thirteen persons took part  in               this offence."               While   maintaining  the  conviction  of   the               appellants, S. K. Das J.  observed at page 181               of the Report               "Nothing in law prevented the High Court  from               finding  that the unlawful assembly  consisted               of   the  four  convicted  persons  and   some               unidentified  persons, who  together  numbered               more  than  five.   We  have  advisedly   said               "Nothing  in  law etc." for,  whether  such  a               finding can be given or not must depend on the               facts  of each case and on the  evidence  led.               It  is really a question of fact to be  deter-               mined  in  each  case on  the  evidence  given               therein.   Learned counsel for  the  appellant               argued before us, as though it is a matter  of               law,  that it was riot open to the High  Court               to  come  to  the finding to  which  it  came,               because the prosecution case was that thirteen               named   persons   constituted   the   unlawful               assembly.   We  are  unable  to  accept  this.               argument  as  correct.  We do not  think  that               there  was any such legal bar as is  suggested               by learned counsel, though there may be  cases               where   on  the  facts  proved  it   will   be               impossible   to  reach  a  finding  that   the               convicted  persons, less than five in  number,               constituted an unlawful assembly with  certain               unspecified  persons  not  mentioned  in   the               charge." In Kartar Singh v. State of Punjab (2), the prosecution case

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was.  that  the appellant along with 12  other  persons  had committed the offence under s. 302 read with s. 149 I. P. C. 13  persons  including  the appellant  were  tried  for  the offence.   The  Sessions  Judge  was  not  certain  of   the participation of 10 accused.  But he was satisfied that  the appellant  and two others did participate in the crime.   He positively found that those two persons along with at  least 9  or 10 persons had committed the crime.  But he could  not say  as  to  who  those 9 or 10  persons  were.   The  three convicted  persons  appealed to the. High Court.   The  High Court dismissed the appeal.  It was urged (1) [1960] 2 S.C.R. 172. (2) [1962] 2 S.C.R. 395. 522 before this Court that on the acquittal of the 10 co-accused the remaining three accused could not be convicted with  the aid of s. 149 I. P.C.  Rejecting  the  argument,   Raghubar Dayal J. observed               "It  is  only when the number of  the  alleged               assailants  is  definite and all of  them  are               named,  and the number of persons found to  be               proved  to have taken part in the incident  is               less  than five, that it cannot be  held  that               the  assailants’ party must have consisted  of               five  or more persons.  The acquittal  of  the               remaining  named persons must mean  that  they               were not in the incident.  The fact that  they               were named, excludes the possibility of  other               persons  to  be in the appellant’s  party  and               especially when there is no occasion to  think               that  the  witnesses naming  all  the  accused               could  have committed mistake  in  recognising               them.  "               The learned Judge added               "The witnesses were from village Seel.  A good               number   of  the  accused  were   from   other               villages.  Only two of the witnesses had named               all the thirteen accused.  Other witnesses did               not name all of them.  None of them named more               than  seven accused and all of them said  that               there were thirteen persons in the appellant’s               party."               The learned Judge then observed               "In this state of evidence, it is not possible               to  say that the courts below could  not  have               come  to the conclusion that there  were  more               than five persons in the appellant’s party." It may be observed that the facts of this case have a  close resemblance with the facts in our case. Counsel for the appellant has relied on Mohan Singh v. State of  Punjab(1).  The appellants along with three others  were charged with the offence under s. 302 read with s. 149 I. P. C. They were all named.  The Sessions Judge acquitted two of them.   He convicted the appellant and one more.  On  appeal the High Court affirmed their conviction and sentence.   The Sessions  Judge had taken care to record a finding that  the crime  must have been committed by more than three  or  four persons.   The High Court affirmed this finding.  On  appeal in  this Court, it was pointed out that the charge  and  the evidence of the prosecution referred to the  five accused as assailants  and  to no  once else.  Council  for  the  State conceded that it was so.  On this concession, the Court said :  "If that be so, as soon as two of the five named  persons are  acquitted,  the assembly must be deemed  to  have  been composed  of only three persons and that clearly  cannot  be

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regarded as an unlawful assembly".  Obviously, the facts  of this  case are distinguishable from the facts of  our  case. So  that appellant can derive no assistance from this  case. It  may be observed that Dalip Singh, Bharwad Mepa Dana  and Kartar  Singh  (supra)  were noticed in this  case  and  not dissented from. (1)  [1962] Suppl. 3 S.C.R. 848. 523 The  next  case relied on by counsel, for the  appellant  is Krishna  Govind Patil v. State of Maharashtra(1).   In  this case the appellant was convicted of the offence under s. 302 read with the aid of S. 34 I. P. C. The prosecution case was that  the appellant along with three persons  had  committed the  crime.   The  appellant and those  three  persons  were charged  with the offence under s. 302 read with s. 34  I.P. C.  The  Sessions  Judge did  not  believe  the  prosecution evidence  and  acquitted all of them.  On  appeal  the  High Court  convicted the appellant but maintained the  acquittal of   the  remaining  three  The  appellant  challenged   his conviction  in this Court on a ground identical to  the  one before  us.  This Court accepted the argument and  acquitted the  appellant.  But it may be noted that the facts of  this case  are  entirely distinguishable from the  facts  of  our case.   There  the eye witnesses had deposed that  the  four accused specifically named had beaten the deceased. ?None of those witnesses spoke about the  participation of any  other person.   While  convicting the appellant   the  High  Court recorded  the finding that he along with one or more of  the other   accused  committed  the  offence.   Obviously,   the prosecution did not put forward a case of the commission  of crime by one known person and one or two unknown persons  as in  our case.  Nor was here evidence to the effect that  the named accused had committed the crime with one or more other persons.   In the case before us there is clear evidence  to the effect that the appellant along with two unknown persons had committed the crime.  For these distinguishing  features this case will also not assist the appellant. In  the result, we find no illegality in the  conviction  of the  appellant  with the aid of s. 34 I. P. C. There  is  no force in this appeal aid it is hereby dismissed. P.B.R      Appeal dismissed. (1) [1964] 1 S.C.R. 678. 524