PETITIONER: BHAJAN SINGH & ORS. Vs. RESPONDENT: STATE OF U.P. DATE OF JUDGMENT09/04/1974 BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. CHANDRACHUD, Y.V. SARKARIA, RANJIT SINGH CITATION: 1974 AIR 1564 1974 SCR (3) 891 1974 SCC (4) 568 ACT: Indian Penal Code (Act 45 of 1860), s. 149--Scope of. Constitution of India, 1950, Art. 136--Criminal appeal--Interference by Supreme Court. HEADNOTE: The three appellants and two others were convicted for an offence under s. 3021149, I.P.C. and sentenced to imprisonment for life by the High Court, affirming the judgment of the trial court. Dismissing the appeal by special leave, HELD : (1) In in appeal under Art. 136 of the Constitution this Court is \cry slow to interfere with the concurrent conclusions of the two courts below \with regard to appreciation of evidence of the witnesses. The accused must be able to make Out an extraordinary case of gross and palpable injustice to induce this Court to take a view contrary to that arrived at by the High Court [893 E] (2)The evidence disclosed that the live accused were members of an unlawful assembly with the common object to kill the deceased. The manner ill which the defence was conducted in the trial court shows that the accused were not prejudiced by the use of the word 'beat' in the charge. [893 G-894 D] (3)Even if the accused were originally members of unlawful assembly with the common object of only hearing the deceased they would be guilty under s. 302 read with the second limb of s. 149. Since they came armed with deadly weapons and knew that by using those deadly weapons upon the deceased death would be caused. This is not a case where something foreign. or unknown to the original object had taken place all of a sudden. Even assuming that the unlawful assembly was formed originally only to beat, it is clearly established in the evidence that the said object is well- knit with what followed as the dangerous finale of the beating. It 'was the execution of the same common object which assumed the fearful character implicit in the illegal' action undertaken by the five accused. [894 F-G; 895 A-E] K.C. Mathew and others v. The State of Travancore-Cochin [1955] 3 S.C.R. 1057, followed. (4) There is no circumstance in the case which can bring it under s. 304' I.P.C. [894G] JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 10 of
1970.
Appeal by special leave from the judgment and order dated
the 29th August, 1960 of the Allahabad High Court in
Criminal Appeal No. 568 of 1967.
C. L. Sarin and R. L. Kohli, for the appellants.
D. P. Uniyal and O. P. Rana, for the respondent.
The Judgment of the Court was delivered by
Goswami, J. This criminal appeal by special leave is
directed’ against the judgment of the Allahabad High Court
affirming the conviction of the five appellants, Bhajan
Singh, Chain Singh, Baldeo Singh Jagat Singh and Gurbachan
Singh under section 302/f49 I.P. C. and’
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sentence of imprisonment for life on each of them. Bhajan
Singh, Chain Singh and Jagat Singh have further been
convicted under section 147 I. P. C. and sentenced to
rigorous imprisonment for one year each ,and the two other
appellants have also been convicted under section 148 1. P.
C. and sentenced to one and a half years rigorous, imprison-
ment each. Special leave was refused to Baldev Singh and
Gurbachan Singh.
The prosecution case may briefly be stated
Chain Singh and Baldeo Singh are sons of Bhajan Singh, Gur-
bachan Singh is the son of Jagat Singh. The deceased is
Bakhsheesh Singh, who was the brother of Major Singh and a
cousin of appellant, Bhajan Singh. Major Singh had
purchased some land in their village Paivandkheri from one
Sohan Singh and Gurbachan Singh was in unlawful possession
of over 15 to 16 bighas of the said land. There was
litigation between Gurbachan Singh and Major Singh in
respect of this land. Gurbachan Singh subsequently sold his
entire land including the disputed area to Bhajan Singh.
Thereafter Major Singh and his father Ujagar Singh asked
Bhajan Singh to give up possession over the land purchased
by Major Singh and, on the day before the occurrence, su.-
gested to him that, they should go to the Patwari and settle
the matter to which Bhajan Singh agreed. On September 17,
1964, at about 11.30 A.M. Bakhsheesh started on a cycle for
the house of the Patwari with papers in connection with the
disputed land. He was followed on foot, by his father,
Ujagar Singh and brother Major Singh. When Bakhsheesh Singh
had hardly gone a distance of about 20 or 25 paces from his
house, the five appellants accosted him, Baldeo Singh was
armed with a spear and Gurbachan Singh with a gandasa and
the three other appellants were armed with lathis.
Bakhsheesh Singh got down from the cycle and Bhaian Singh
caught hold of him and incited the other :appellants to beat
him. Baksheesh Singh requested the appellants to accompany
him to the Patwari to settle the dispute, but Jagat Singh
said that they would settle it on the spot. Baldev Singh
then give a ,spear blow to Bakhsheesh Singh, Gurbachan Singh
gave him a gandasa blow on the head and Chain Singh beat him
with his lathi. Thereafter the appellants ran away. The
occurrence was witnessed by Ujagar Singh (P.W. 3), Major
Singh (P.W. 2) and Jogendar Kaur, widow of the deceased
(P.W. 4) and Sadhu Singh, Sardari Singh and Prakash Singh,
who were servants of Ujagar Singh. Bakhsheesh Singh was
injured in the abdomen and his intestines came out. The
injury was bandaged with the turbans of the deceased and
Ujagar Singh and he was taken to the police Station,
Afzalgarh, where a first information report was lodged by
Major Singh at 12.45 P.M. The police sent ‘him to the
hospital at Sherkot where Dr. Yogendra Pal (PW 4 in the
Committing Court) examined him. From there he was taken to
the District Hospital, Bijnor. As his condition was
serious, a dying declaration (Ex. Ke-8) was recorded at
9.30 P.M. by the Tahsildar Magistrate, Shri Balbir Singh
(P.W. 1). Bakhsheesh Singh died next day, September 18,
1964, in the afternoon. Postmortem examination was
performed by Dr. P. P. Agarwal on 19th September, 1964.
According to the Doctor death was due to shock and
haemorrhage from the injuries.
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It appears that Gurbachan Singh and Chain Singh had some
Simple injuries on their person but they did not report to
the police nor were they examined by Dr. K. C. Gupta (D. W.
4) earlier than September 20, 1964, at 4.00 P. M.
The defence plea is’ an absolute denial by Bhajan Singh,
Baldeo Singh and Jagat Singh while Chain Singh and Gurbachan
Singh gave a different version of the occurrence. According
to Chain Singh he and Gurbachan Singh were grazing their
cattle by the side of the canal when one Sardar Singh and
Bakhsheesh Singh came there. Bakhsheesh Singh abused them
and there was grappling with him. Major Singh came from
behind with a karauli and gave him a blow with it. When for
the second time Major Singh tried to assault him with the
karauli in struck Bakhsheesh Singh. According to Gurbachan
Singh he tried to intervene and received lathi blows from
Sardar Singh.
The prosecution relies upon, besides the medical evidence,
the evidence of the three eye witnesses as noted above
namely, PW 2, PW 3 and PW 4 and also upon the statement of
Sadhu singh recorded in the’ court of the Committing
Magistrate and admitted in the Court of Sessions under
section 33 of the Evidence Act as well as upon the dying
declaration of Bakhsheesh Singh to establish the charges.
The High Court has relied, as the Sessions Judge earlier
did, upon the evidence of the three eye witnesses and has
found that their evidence was corroborated by the dying
declaration as well as by the medical’ evidence, as properly
scanned by the courts.
In an appeal under Article 136 of the Constitution this
Court is very slow to interfere with the concurrent
conclusions of the two courts below with regard to the
appreciation of evidence of the witnesses. The accused must
be able to make out an extraordinary case of gross and
palpable injustice to induce us to take a contrary view from
that arrived at by the High Court in this case.
Even so, the learned counsel for the appellants submits that
the High Court has erred in relying upon the, testimony of
these partisan witnesses since they are all related to the
deceased. But even the deceased is the cousin of the
appellant, Dhajan Singh.
We have perused the evidence of the three eye witnesses and
could not find any ground to disbelieve their testimony.
The learned counsel also could not draw our attention to any
serious infirmity in the evidence except characterising
their testimony as interested. Counsel further submits that
their statements are falsified by the medical evidence. He
also submits that the eye witnesses have not given any
explanation for the injuries received by the accused and,
therefore, their evidence should be rejected. The-same
grounds were also pressed into service before the trial
court and in the High Court and both the courts repelled the
same with good reasons with which we concur.
The learned counsel contends that the common object of the
unlawful assembly is only to beat Bakhsheesh Singh and not
to kill him. He submits that even ‘on the evidence accepted
by the High Court charge under section 302/149 I.P.C. has
not been established against the accused. The learned
counsel draws our attention to the word ‘maro’
894
used by the witnesses before the assault started. On the
other hand, our attention is drawn by the learned counsel
for the State, to the F.I.R. where it is mentioned that
Jagat Singh said “let us settle the matter here. What will
the Patwari do? Kill the sala”. Nothing turns decisively
on the word ‘maro’ used by the witnesses and we have to see
the entire surrounding circumstances and the quick sequence
of events that immediately followed thereafter. It is clear
that all the five accused came armed with deadly weapons and
one of them, namely, Bhajan Singh was the first to catch
bold of the deceased and shouted “beat the sala”, while
accused Jagat Singh said that they would not go to the
Patwari and decide the matter on the spot. He also said
“beat thissala”. Thereupon Baldeo Singh gave a barchhi blow
which hit the deceased’s abdomen. It is, therefore, clear
from the above version, which has been accepted by the
courts below and which we have no reason to disbelieve, that
the five accused were members of an unlawful assembly with
the common object to kill Bakhsheesh Singh. .We do not give
much importance to the word ‘beat’ used in the charge in
this case and we do, not think that the accused have, been
prejudiced by such a recital in the charge from the manner
in which the defence was conducted in the trial court in
answer to the evidence addressed by the prosecution.
The learned counsel strenuously contends that the accused
cannot be convicted under section 3021/t49 I.P.C. as the
common object of the assembly was not to kill the deceased.
The learned counsel, however., fails to take note of the
fact that section 149 has got two limbs;
“If an offence is committed by any member of
an unlawful assembly in prosecution of the
common object of that assembly, or such as the
members of that assembly knew to be likely to
be committed in prosecution of that object,
every person who, at the time of the
committing of that offence, is a member of the
same assembly, is guilty of that offence”.
Even if, therefore, the accused were originally members of
an-unlawful assembly with the common object of only beating
Bakhsheesh Singh having come armed with deadly weapons, some
with spear and gandaisa and some with lathis, in the
desperate manner they have done, and if the members of the
assembly knew that by using these weapons upon Bakhsheesh
Singh death would be caused, they are guilty of section 302
read with section 149 I.P.C. There is not circumstance in
the case which can bring down this case to one under section
304 I.P.C. The intention was clear to kill Bakhsheesh Singh
and all the accused are guilty of the offence charge namely,
section 302/149 I.P.C.
The learned counsel relied upon a decision of this court in
Shambhu Nath Singh and Others v. State of Bihar(1) and also
upon another decision in The Queen v. Sabid Ali and
Others(2). We are unable to appreciate how these decisions
help the accused in the present case. We are absolutely
satisfied that all the five accused came armed
(1) AIR (1960) S.C. 725. (2) 1873 Weekly Reporter (20), 5.
895
with deadly weapons despite the arrangement on the previous
day to accompany Major Singh and Bhajan Singh had agreed to
go to the PatWari. By turn of events they took a different
posture to challenge Bakhsheesh Singh and party on their way
to the Patwari, dealt with them in the manner they have done
resulting in the death of Bakhsheesh Singh. We are of the
view that even the second limb of section 149 I. P. C. is
established on the evidence in this case.
From the commencement of the interception of the
complainant’s party by the accused armed with deadly weapons
and first accosting of the deceased by Bhajan Singh with a
challenging posture upto the running away of the five
accused together after causing fatal injuries on the
deceased, there is no escape from the conclusion that all
the five accused came and worked with one design and object
and they were definitely in the know of the fatal
consequence that, actually ensued as a result of the
conjoint attack to make them all vicariously responsible
under section 149 I.P.C.
Section 149 I.P.C. constitutes, per se a substantive offence
although the punishment is under the section to which it is
tagged being committed by the principal offender in the
unlawful assembly, known or unknown. Even assuming that the
unlawful assembly was formed originally only to beat, it is
clearly established in the evidence that the said object is
well-knit with what followed as the dangerous finale of,
call it, the beating. This is not a case where something
foreign or unknown to the object has taken place all of a
sudden. It is the execution of the same common object which
assumed the fearful character implicit in the illegal action
undertaken by the five accused. (See also K. C. Mathew and
Others v. The State of Travancore-Cochin(1).
Since all the accused are convicted under section 302/149
I.P.C. there is no further necessity, in the circumstances
of this case, for their separate conviction under section
147 and 148 of the Indian Penal Code. Conviction and
sentence of Bhajan Singh, Chain Singh and Jagat Singh under
section 147 I.P.C. set aside. The conviction of all accused
under section 302/149 I.P.C. and their sentence of life
imprisonment on each of them are affirmed. The appeal is
dismissed subject to the above modification.
We may conclude by observing that this murder case has
resulted in conviction in spite of the police at the
instance of a private complainant who made serious
allegations in court against the investigating agency.
V.P.S.
Appeal dismissed.
(1) [1955] (2) S.C.R. 1057.
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896