Suraj Pal Vs. The State of Uttar
Pradesh [1955] INSC 10 (1 March 1955)
JAGANNADHADAS, B.
BOSE, VIVIAN SINHA, BHUVNESHWAR P.
CITATION: 1955 AIR 419 1955 SCR (1)1332
ACT:
Indian Penal Code (Act XLV of 1860), ss. 302,
307-Charges and conviction by trial court under s. 302 read with s. 149 and
under s. 307 read with s. 149 of the Code--Conviction by the appellate court
under ss. 302 and 307 of the CodeLegality-Code of Criminal Procedure (Act V of
1898), ss. 236, 237-Applicability-Betrial.
HEADNOTE:
Where a person has been charged along with
others under ss. 302 and 307 of the Indian Penal Code each, only as read with
section 149 of the Code, his convictions and sentences for the substantial
offences under ss. 302 and 307 of the Code are erroneous. The absence of
specific charges in this behalf is a serious lacunas in the proceedings,
inasmuch as the framing of a specific and distinct charge in respect of every
distinct head of criminal liability constituting an offence is the foundation
for a conviction and sentence therefore The conviction in these circumstances
under Bs. 302 and 307 of the Code and sentences of death and transportation for
life cannot be maintained unless the Court is satisfied, on the facts of the
case, that the accused has not been prejudiced in his trial. Whether or not in
such a situation the questioning of the accused during the course of his
examination under s. 342 of the Code of Criminal Procedure in relation to the
offences under sections 302 and 307 of the Indian Penal Code can be relied upon
as obviating the likelihood of prejudice has to be determined with reference to
the facts and circumstances of each case.
All the circumstances of the case and the
evidence and materials on the record should be looked into on the question
arising in such a situation as to whether a retrial should be ordered or not.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 139 of 1954.
1333 Appeal by Special Leave from the
Judgment and Order dated the 29th April 1954 of the Allahabad High Court in
Criminal Appeal No. 1101 of 1953 and Referred No. III of 1953 arising out of
the Judgment and Order dated the 3rd September 1953 of the Court of the
Sessions Judge at Fatehpur in Sessions Trial No. 50 of 1953.
Sadhan Chandra Gupta and Janardhan Sharma,
for the appellant.
K. B. Asthana and C. P. Lal, for the
respondent.
1955. March 1. The Judgment of the Court was
delivered by JAGANNADHADAS J.-This is an appeal by special leave from the
judginent of the High Court at Allababad. The sole appellant before us has been
convicted by the Sessions Court under sections 148, 307 and 302 of the Indian
Penal Code, and sentenced to rigorous imprisonment for two and a half years
under section 148, to transportation for life under section 307, and to death
under section 302. These convictions and sentences have been confirmed by the
High Court. At the trial there were 19 other accused along with this appellant.
All of them were convicted and sentenced by the trial court under various sections
of the Indian Penal Code. On appeal ten out of them were acquitted by the High
Court. In respect of the remaining nine besides this appellant, the convictions
and sentences were partially modified. But this appeal is not concerned with
them. The incident in the course of which these offences are said to have been
committed took place in the evening of the 4th January, 1953, shortly before
sun set in a village called Sonari in the district Fatehpur, Uttar Pradesh.
During that incident two persons, Bisheshwar and Surajdin, are alleged to have
received gun-shot wounds. Bisheshwar survived but Surajdin died on the spot.
The back-ground for this incident was as follows: In the village of Sonari
there were two factions between whom there was prior history of enmity
resulting in criminal prosecutions by each against the other. It 1334 may be
broadly stated that the accused persons in the present case belong to one party
and the prosecution witnesses as well as the deceased person belong to the
other party. In the year 1946 there was rioting between them in which two of
the present prosecution witnesses were assaulted. This led to a criminal case
against some of the present accused and others, in which they were convicted
and sentenced, the members of the other party figuring there in as prosecution
witnesses. Again, just five months prior to the present incident, there was
another rioting in the village between these two groups. In that, one Rain
Bharosey a member of the party of the present accused was killed. As a result
15 persons of the opposite-party (i. e. the party of the present prosecution
witnesses) were prosecuted. By the date of this incident that case had been
committed to the sessions but the session’s trial had not started. According to
the prosecution case, the occasion for the incident, which concerns us, was
that some of the present accused wanted to persuade or prevent a member of the
opposite-party by name, Bisheshwar-P.W. 2 in this casefrom doing what is called
pairavi on behalf of the accused in that case. (Pairavi is said to be the
active assistance in relation to Court proceedings which a friend or agent
renders to a litigant). While, Bisheshwar, P.W. 2, and two others Bhurey Lal,
P.W. 1, and Ram Saran, P.W. 3, were sitting in front of the house of Ram Saran
on the evening of the 4th January, 1953, the present appellant and the other
accused are said to have turned up before them,' lathies in hand. The appellant
is said to have asked Bisheshwar to give up doing pairavis in the then pending
case on behalf of the accused therein. Bisheshwar having declined to do so, the
appellant is said to have pulled out a pistol from his inner pocket and fired
at him, as a result of which he fell down on the ground. P.Ws. 2 and 3 are said
to have dragged him inside the house and chained the door from inside, run up
the roof and raised an alarm, whereupon a number of persons of the other party
are said to have come running up. One of the persons who so came running up was
1335 Surajdin who was cutting fodder at the house of Bhurey Lal, P.W. 1. The
appellant is said to have fired at him with the pistol. He fell down and died
on the spot. Another person named Gaya Prasad is said to have received some
minor lathi injuries. Accused party thereafter is said to have run away. First
information of the report was lodged by Bhurey Lal, P.W. 1, near about 12 that
very night at the police station which was about nine miles from the scene of
the occurrence. The police came on the scene the next morning and the usual investigation
followed. The police filed on the 22nd February, 1953, a charge-sheet for
offences under sections 147, 148, 323/149 and 307/149. The charge-sheet in so
far as it was under section 323/149 related presumably to some minor injuries
said to have been received by Gaya Prasad, and in so far as it was under
section 307/149 related presumably to the gun-shot wounds received by
Bisheshwar, P.W. 2. It may be noticed that the charge-sheet did not concern
itself with any offence or offences alleged to have been committed, in bringing
about the death of Surajdin by the firing of a pistol at him. It is on this
charge-sheet that cognizance of the case was taken by the Magistrate and
committal proceedings were started. It appears, however, that the complainant-party
finding that the police challan did not relate to the offence under section
302, Indian Penal Code filed, on the 2nd May, 1953, a private complaint, before
the very Magistrate in whose court the committal proceedings were by then
pending. That complaint was filed by the same Bisheshwar, P.W. 1, who lodged
the first information in this case on the 5th January, 1953. It sets out
substantially the same facts.
This complaint also was taken on the file of
the Magistrate.
The enquiry thereon was merged into the
enquiry relating to the police challan case. The Magistrate eventually
committed all the 20 accused to take their trial before the Sessions Judge by
framing charges, under sections 147, 323/149, 307/149 and 302/149. There was a
specific charge under section 148, Indian Penal Code against Suraj Pal and 1336
Dharm Raj, the former for being armed with a pistol and the latter for being
armed with a pharsa, at the time of the commission of the rioting. It is in
respect of charges so framed by the committing Magistrate without any amendment
or alteration that the accused were tried in the Sessions Court. It may be
mentioned at this stage that the defence of the accused, apart from the general
denial of their having anything to do with the incident and denials as to their
having been present at the occurrence, was to the effect that it was the
complainant's party including the deceased Surajdin who formed the unlawful
assembly, with the common object of beating one Ram Pal of the village. This
Ram Pal had appeared as a prosecution witness at the committal stage in the
criminal proceedings by then pending against the present prosecution witnesses
as accused. It was also their defence that it was one Ram Bhawan of that party
who, in the course of the incident, fired pistol shots in the air and also
shot, later, Surajdin and brought about his death.
The learned Sessions Judge found all the
accused guilty of the various offences as charged and sentenced them. On appeal
the High Court considered the prosecution evidence with reference to three
aspects. (1) How far the manner in which the prosecution alleged the incident
to have taken place can be accepted; (2) How far the prosecution case regarding
the presence and participation of the various persons can be accepted; and (3)
What offence can be said to have been made out as against each of them. On the
first question the High Court accepted the view that the incident took place as
alleged by the prosecution. With reference to the second, the High Court set out
elaborately various reasons why the prosecution evidence in so far as it
implicates particular individuals, could not be accepted at its face value and
required to be carefully scrutinized.
With reference to certain criteria which it
was considered necessary and right to adopt for purposes of scrutiny, the High
Court held that the convictions of ten out of the 20 persons before it should
be set aside and that 1337 the other ten persons including the present
appellant were participants in the rioting. Accordingly, the Court confirmed
the conviction as against these ten under section 147, Indian Penal Code. As
regards the charge under section 148, Indian Penal Code, Dharm Raj was
acquitted but the conviction of Suraj Pal was maintained on the ground of his having
a pistol in his hand at the time of the rioting.
There remained the three charges against the
ten persons under sections 323/149 for injuries on Gaya Prasad, 307/149 in
respect of the gun-shot wounds received by Bisheshwar, and 302/149 in respect
of the murder of Surajdin. It was held that the assault on Gaya Prasad wasn't
proved beyond doubt and hence, all the accused were acquitted in respect of
this charge. As regards the other two charges, i.e., under sections 307/149 and
302/149, the High Court came to the conclusion that neither the attempt on the
life of Bisheshwar by pistol fire nor the actual death of Surajdin by pistol
fire can be said to have been in prosecution of the common object of the
unlawful assembly nor to have been within the knowledge of the accused as being
so likely. It was, therefore, held that none of the accused could be found
guilty under section 149, with reference to, the attempt on the life of
Bisheshwar, or the death of Surajdin. All the same, in view of the fact that the
evidence showed that the person who inflicted the pistol fire as against both
was the appellant Suraj Pal, it was held that he was guilty of the offences
under sections 307 and 302, Indian Penal Code. On this ground, therefore, the
High Court, while it set aside the convictions and sentences of all the accused
under sections 307/149 and 302/149, maintained the 'convictions of the
appellant under these two sections and maintained the sentences of
transportation for life under section 307 and of death under section 302,
Indian Penal Code. The High Court convicted the other nine persons under
section 323/149 in respect of the injuries received by P.W. 2 and sentenced
them there for.
On the above statement of the course of these
proceedings, one important fact which emerges is that 1338 there have been no
direct and individual charges against the appellant for the specific offences
under sections 307 and 302, Indian Penal Code. The question that arises is
whether', without such direct charges the convictions and sentences for those
offences can be maintained. It appears to us quite clear that a charge against
a person as a member of an unlawful assembly in respect of an offence committed
by one or other of the members of that assembly in prosecution of its common
object is a substantially different one from a charge against any individual
for an offence directly committed by him while being a member of such assembly.
The liability of a person in respect of the latter is only for acts directly
committed by him, while in respect of the former, the liability is for acts
which may have been done by any one of the other members of the unlawful
assembly, provided that it was in prosecution of the common object of the
assembly or was such as the members knew to be likely to be so committed. A
charge under section 149, Indian Penal Code puts the person on notice only of
two alleged facts, viz. (1) that the offence was committed by one or other of
the members of the unlawful assembly of which he is one, and (2) that the offence
was committed in prosecution of the common object or is such that was known to
be likely to be so committed. Whether or not section 149, Indian Penal Code
creates a distinct offence (as regards which there has been conflict of views
in the High Courts), there can be no doubt that it creates a distinct head of
criminal liability which has come to be known as "constructive
liability"-a convenient phrase not used in the Indian Penal Code. There
can, therefore, be no doubt that the direct individual liability of a person
can only be fixed upon him with reference to a specific charge in respect of
the particular offence. Such a case is not covered by sections 236 and 237 of
the Code of Criminal Procedure. The framing of a specific and distinct charge
in respect of every distinct bead of criminal liability constituting an
offence, is the foundation for a conviction and sentence therefore The absence,
therefore, of specific 1339 charges against the appellant under sections 307
and 302, Indian Penal Code in respect of which he has been sentenced to
transportation for life And to death respectively, is a very serious lacuna in
the proceedings in so far as it concerns him. The question then which arises
for consideration is whether or not this lacuna has prejudiced him in his
trial.
It is perfectly true that the initial
accusation as disclosed by the first information lodged by the complainant,
P.W. 1, on the 5th January, 1953, specifically, was to the effect that it was
this appellant who with a pistol fired both as against Bisheshwar, P.W. 2, as
also against the deceased, Surajdin. It is also true that this allegation was
repeated in the private complaint filed by this same P.W. I in May, 1953,
directly before the Magistrate. It is also undeniable that the evidence in
court, both in the committal proceedings as well as at the sessions trial,
given by the prosecution witnesses was in support of that allegation. But
curiously enough, apart from the absence of any individual charges against the
appellant for these specific offences, even the charges against him and others
relating to the injuries inflicted on P.W. 2 and the deceased Surajdin are
somewhat vague as to the authorship thereof The relevant charges run as follows
(after specifying the members alleged to constitute the unlawful assembly):
"Firstly:-That you, on the 4th day of
January 1953 at about half an hour before sunset in village Sonari, formed an
unlawful assembly with the common object of committing the murders of
Bisheshwar and Suraj Din and committed rioting.
And thereby committed an offence punishable
under section 147 of the Indian Penal Code.
Secondly:-That you on the same date, time and
place, in prosecution of the common object of the said unlawful assembly of
which you were members at that time committed the murder of Suraj Din who was
shot dead by a pistol fire.
And thereby committed an offence punishable
under section 302/149 of the Indian Penal Code, 1340 Thirdly:-That you on the
same date, time and place, in prosecution of the common object of the said
unlawful assembly of which you were members at that time attempted to commit
the murder of Bisheshwar Singh by means of a pistol fire.
And thereby committed an offence punishable
under section 307/149 of the Indian Penal Code".
The portions underlined (for the purposes of
this judgment) in the charge under heads 2 and 3 above are curiously vague.
They appear to indicate a definite
non-committal attitude on the part of the Public Prosecutor and the Court,
which has the ultimate responsibility for the framing of the charge, (vide
section 226, Code of Criminal Procedure) as to who is the active author of the
pistol fire referred to under these two heads of charge. When the charge was so
pointedly vague, no accused was bound to direct his attention in his defence to
the question as to whether he or somebody else was the person who fired the
pistol which brought about the gun-shot wounds. It has been brought to our
notice that the appellant has been specifically questioned in the Court of Sessions
under section 342, Code of Criminal Procedure on the footing that he was the
person who fired at P.W. 2 and the deceased, Surajdin, and that the accused
denied it. But this cannot be said to remove any prejudice that would arise by
virtue of the vagueness in the charge at the sessions trial, as to who was the
author of the pistol fire.
Normally in a sessions trial the accused has
no right of cross-examination after the questioning under section 342, Code of
Criminal Procedure. It has been suggested that since such a question was put
also in the questioning by the committing Magistrate under section 342, Code of
Criminal Procedure, the accused had ample notice of this specific case before
the commencement of the sessions trial. But it does not follow that there could
be no prejudice. On the other hand, the very fact that in spite of such
questioning the charges framed in the Magistrate's Court, with their vagueness,
in so far as this feature therein is concerned, has been 1341 maintained,
before the Sessions Court without any amendment, is likely to have been
misleading. The appellant might well have relied on the absence of any such
amendment as being an indication that he was not called upon to defend himself
on the footing of his being the author of the pistol fire. In a case so serious
as that which involves the sentences of transportation for life, and of death,
and particularly in a case like the present one, where the death sentence has
been awarded in the trial court by distinguishing this appellant from all the
other accused in respect of his individual act by way of pistol fire, it is
difficult to say that the accused has not been prejudiced by the absence of
specific charges under sections 307 and 302, Indian Penal Code.
Further, the medical evidence indicates that
P.W. 2 as well as the deceased Surajdin had gun-shot wounds on their person.
The evidence of the Doctor is to the effect that these wounds may have been
caused by a country pistol which, it is alleged, the appellant had in his hand.
It has been suggested on behalf of the defence that the Medical Officer was not
competent to speak about it and that if the prosecution wanted to rely
thereupon, they should have called an arms expert to speak to the same. Whether
or not this comment is legitimate, it is clear that if the appellant is to be
found directly responsible for inflicting the wounds, noted as gun-shot wounds
by the Medical Officer, he might well have availed himself of the opportunity
to elucidate, by cross-examination or positive defence, the nature of the
fire-arm which would have caused the actual injuries found on the bodies of P.
W. 2 and of deceased Surajdin. In all the circumstances above noticed, we are
satisfied that the absence of specific charges against the appellant under sections
307 and 302, Indian Penal Code has materially prejudiced him. We must
accordingly set aside the convictions and sentences of the appellant under
sections 307 and 302 of the Indian Penal Code.
The further question that arises is whether
or not we are to direct a retrial of the appellant in respect of these
offences. We have given our best consideration to all the circumstances of this
case and have for this purpose looked into the evidence and the material on the
record. The case discloses certain outstanding features.
At the very outset and simultaneously with
the first information filed by P.W. 1 in this case, there was another report
filed by one Ram Pal at the same police station, almost exactly at the same
time, relating to the same incident. This is Ex. P-16 on the record. This
report is said to have been lodged at the police station at 12-15 in the night,
while the other report is said to have been lodged at 12-10 that night. The
report, Ex. P-16, alleged the present prosecution party to be the aggressors
and put forward, as the occasion for the incident, an attempt on the part of
the prosecution party to beat Ram Pal, the complainant of that complaint, for
having given evidence in support of the prosecution in the committal proceedings
of the rioting case then pending against the present prosecution witnesses (as
accused therein)obviously with a view to prevent him from giving evidence in
the Sessions Court against them. That complaint specifically refers to one Ram
Bhawan who is P.W. 4 in the present case as the person who had a pistol in hand
and fired with it. That report makes no mention of any injuries having been by
then received from pistol fire, in the course of that incident.
Of course, there is no proof, in this case,
of any of the allegations in that report. But it appears from the order of
commitment in this case (which forms part of the present printed record) that
with reference to that report there was pending, at the date of the committal,
a cross-case against some of the prosecution witnesses in the present case for
the same incident. The police constable mohair of the police station where the
counter complaint, Ex. P-16 was lodged and who accepted both the complaints (1)
from Bhurey Lal, and (2) from Ram Pal, has stated in his evidence that when the
complaint, Ex. P16, was filed by Ram Pal the present appellant Suraj Pal had
also accompanied Ram Pal, the complainant therein. This may well be claimed to
be the conduct of an innocent person. It is also not without some significance
1343 that admittedly and as a matter of fact, the police did not file any
charge-sheet in the present case against any one for the actual offence of
murder under section 302, Indian Penal Code and that even in the charge-sheet
which they did file they confined the case to section 307, Indian Penal Code
but did not commit themselves as to who out of the members of the unlawful
assembly was the author of the pistol fire. So far as it appears from the
police charge sheet dated the 22nd February, 1953, as printed in the record
before us, there is a statement therein to the effect "Suraj Pal Singh and
Ram Manohar were armed with pistols".
Ram Manohar is also one of the accused who
was put up for trial. The statements of some of the prosecution witnesses
furnish indication of more than one fire-arm having been used at the incident.
Thus, for instance., Bisheshwar, P.W. 2, said "I heard 3 or 4 guns being
fired outside and also heard a noise". P.W. 4., Ram Bhawan, said "We
four persons threw lumps of earth from the well at the accused persons, the
accused retired and fired their gun twice................ ........ The accused
had fired a gun from the door of Mabadeo when going away, then, bad fired two
or three guns from his door". P.W. 5, Gaya Prasad, said "Two or three
guns afterwards had been fired from the door of Mahadeo Pandit. Those guns had
been fired from the lane.
The guns had been fired at the door of Ram
Saran and had bit it". All these witnesses no doubt assert that so far as
the particular injuries with which this case is concerned the firing was by the
appellant Suraj Pal. But the above statements by these witnesses in the
cross-examination may well indicate that there may have been other persons in
the unlawful assembly at that time with arms in their hands, who made use of
them by firing. Apart from the use of pistols in the course of that incident,
by one party or the other, there are clear indications that there was a mutual
fight between both the parties. Two of the persons on the side of the accused,
viz. Lal Pratap and Chedi Lal have received some injuries and their injury
certificates have 172 1344 been marked as Exs. D-1 and D-2. The prosecution
witnesses themselves admit that there was mutual fighting to this extent, viz.
that there was also throwing of brickbats by the complainant's party against
the rioters. As already stated there is in fact a counter case against some of
the present prosecution witnesses in respect of the same incident. In such a
situation any further trial is likely to result only in very doubtful and
unreliable evidence being adduced after a considerable lapse of time. Even as
it is, the evidence recorded in the present case has been found by the High
Court in its judgment as not acceptable at its face value. The learned Judges
have dealt with this aspect at length and they wound up their consideration of
this part of the case as follows:
"For the above reasons, I am of opinion
that there is a good deal of substance in this part of the arguments of the
appellants' counsel. The question that would arise is as to which of the
particular accused is guilty and what should be the criterion for deciding this
matter. In view of the biassed and interested nature of the prosecution
evidence, I am of opinion that the presence of only those accused should be
held to have been proved who have been assigned any definite part by the
prosecution witnesses or, whose presence is corroborated by some other
circumstantial evidence. In view of the highly interested nature of the prosecution
evidence, dealing with the first aspect of the case also, viz. the question as
to how far the prosecution have succeeded in proving the manner in which the
incident occurred, 1 have not accepted the prosecution case unless it found
corroboration from some other factor of a circumstantial nature or from
probabilities of the case".
It is by reference to these standards that
they have rejected the evidence of the prosecution witnesses in so far as they
implicated ten other accused whom the High Court acquitted. But it appears to
us, that judged by the very same standards there is no adequate reason for
accepting the evidence as being reliable in respect of this appellant also. In
fact there is good reason to feel that on the same standards this appellant
also should have got the benefit of the doubt. At this stage, it is not out of
place to mention one fact. It appears from the evidence of the Investigating
Officer, P.W. 14, that in the course of the investigation the prosecuting
authorities were of the opinion that the murder in this case was to be
attributed to the prosecution witness, Ram Bhawan, P.W. 4, and not to the
appellant, and that in their view even the evidence as against Ram Bhawan was
not sufficient to put him on trial for the murder. Doubtless such an opinion of
the prosecuting authorities has no relevancy in the case and should not have
been placed on the record in this case. But when we have to consider the
desirability or otherwise of retrial, we need not shut our eyes to these
features of the case which have been brought on the record.
In the circumstances mentioned above we do
not consider that the interests of justice require that any retrial should be
ordered. We accordingly direct that there shall be no retrial.
In the result, the convictions of the
appellant under sections 307 and 302 of the Indian Penal Code and the sentences
there for are hereby set aside. But his conviction under section 148 of the
Indian Penal Code is maintained as also the sentence of two years and a half in
respect thereof. This appeal is accordingly allowed partially to the extent
indicated above.
Appeal partially allowed.
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