JAGIR SINGH versus STATE OF PUNJAB

JAGIR SINGH

STATE OF PUNJAB

March 21, 1967 [R. $. BACHAWAT AND J. M. SHELAT, JJ.j

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

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 murd<jr 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 particu-lar person Or persons gave the fatal blows, once it was found that the murilers 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 case where members of 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 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. I 72, applied . . Prabhu Babaii Novle v. State of Bombay, A.J.R. 1956 S.C. SI, dis-F tinguished. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 210 of 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. Saretn .and R, L. Kohli, for the appel-lants,

Hans Raj 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. 149 ands. 201

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 ( l) J agir Singh of Purana Pind, (2) Tarlok Smgh 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 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 Tar!ok Singh, accused 5 was riding white mare and carrying spear, and the remaining five accused were on foot and were armed with kirpans or swords. Accused 5 shouted challenge saying that Tarlok Singh must not be spared, uccused 4 gave two kirpan blows on his feet, accused I gave sword blow on his neck and the other accused caused in-juries 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 Manoharpura. At distance of about 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 1 was murdered in July, 1964. Amar Singh, Tarlok Singh deceased and one Sawan Singh were tried for the murder but they were convicted of 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 infor-mation 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 place about mile distant from village Purana Pind near the canal mmor. '!he he'.ld was n~ver recovered. The identity of the t~unk was satI~fa~t?nl.Y estabhshed. The post-mortem examina-tion revealed six m1unes. In the opinion of the medical witness the death resulted from the cutting of the neck, caused with som~ sharp-~ged heavy weapon. The first information report stated that the assailants of Tarlok Singh were accused 1 3 s 6 on Singh an one . arnai J ·1 s· mg who were then said to have played th • • • , ar ans parts later. ascribed to nc~us~d· 2 and 4. All the six accused an~ H~r?ans Sm¥h and J.arna1I Smgh were charge-sheeted. The com-m1ttmg m~g1stratc d.1scharged Harbans Singh and Jarnail Sin and com1111.tted the six a~cused to the Sessions Court for trial T~e fo11r eye:w!tnesses. exanm~ed at the trial were Amar Singh, father of the victim, Jogmder Smgh son of Amar Singh Bachan s· son-in-law of Amar Singh and Chhinda whose ~aternal u~~~·: daughter was betrothed to the victim. Amar Singh was injured

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 wit-nesses had correctly identified accused 2, 4 and 6. He gave accus-ed 3 the benefit of doubt 'as the evidence of the witnesses regard-B ing his presence was 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 eye-witnesses was consistent positive and unimpeach-able. Accused 1 made disclosure statement and pointed out place near the bank of the canal about mile or mile and 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 1 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. kirpan was also recovered in consequence of the disclosure statement made by accused l, but the High Cou'rt placed no reliance on this disco-very as it was not•known to whom the place of recovery belonged. 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 strong motive for the murder. Though the courts below discarded 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 201 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 :

"The finding, therefore, in concurrence with that of the learned trial Judge, is that six persons, of whom ap-pellant Dyal Singh of D.alla was armed with spear and was riding on mare and the five others were armed with Kirpans, including appellant J agir Singh of Purana Pind, arrived at the threshing floor of Amar Singh P.W. 1, that there Tarlok Singh deceased received injuries at their

hands, particular injury in the head region having been caused by appellant Jagir Singh of Purana Pind, that when Tarlok Singh deceased was almost de~d or near death, his dead body was placed on t~e mare .m fyont of appellant Dyal Singh of Dalla, and six cull?nts, includ-ing the two appellants, then left the threshmg floor to-wards the nearby canal minor, and that at 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, and ';Vhile aP.pellant Dyal Singh of Dalla and another culprit earned the head on the mare, the remaining four culprits accompani-ed 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 appeµant J?yal Singh of Dalla and another on mare. It 1s 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 com-mon intention was carried out with determination and it is case of gruesome murder. It is 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 whole from start to the end, the appellants, about whose iden-tity there is no manner of doubt whatsoever, cannot es-cape 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 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 com-mon 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 fur-therance of the common intention of all. ifl 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 LSSup. Cl/67-4

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 case where six named accused persons, A, B, C, D, and are charged under s. 302 read with s. 34 of the Indian Penal Code for committing the murder of 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 olow, on the acquittal of C, D, and the remaining two accused and 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 or gave the fatal blow they cannot be convicted under s. 302. Nor is it possible to find that and together with C, D, and jointly committed the murder. Since C, D, and have been acquitted of the charge they could not have participated iD the murder. Unless the court can find that other unidentified assailants together with and took f)art in the murder, and must be acquitted of the offence under s. 302 read with s. 34. But if the court can, on proper appraisal of the evidence find that there were six assailants, the witnesses were mistaken as to the identity of C, D, and F, and four unknown culprits together with and took part in the murder in furtherance of the common intention of all, the court can convict and 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 and is responsibl~ for the murder as if it was committed by him alone.

In Bharwad Mepa Dana and another v. State of Bombay(') 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 con-victed 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 con-victed 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 as'embly and in furtherance of the common intention of all. This Court affirmed the convic-tio!IS 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 clear finding that they shared the common intention with some others whose iden-tity was not established. Even if it was not known which parti-

(1)(196012 S.C.R. 172

cular person or persons gave the fatal blows, once it was 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 case where members of party acted in further-ance 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 crime; once such participation is estab-lished, s. 34 is at once attracted.The case of Prabhu Babaji Navle v. State of Bombay(') 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 conclusion that the appellant shared common intention with other unknown per-son or persons. The case of KriJhna Govind Patil v. State of Maharashtra([2]) is also distinguishable. There, four accused per-sons were charged under s. 302 read with s. 34. The High Court acquitted accused l, 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 parti-cipated in the offence with accused 2. There was not single observation in the judgment of the High Court to indicate that any person or persons other than the named accused participated in the offence. In there circumstances, this Court set aside the con-viction 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 ot?er unknown culprits. Though six named persons were charged with the offence, there was 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 participate<il in the attack. The ~urder was committed by six culprits including accused 1 and 5 m furtherance of the common intention of all. Accused 1 and 5 ~bar~ the common intention with the four other culpl'its whose identity has not been established. Though it is not known which

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 con-victed and sentenced for the offence under s. 201 read with s. 34 of the Indian Penal Code.

The appeal is dismissed.

Appeal dismissed.