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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.

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