Mohan Singh Vs. State of Punjab [1962]
INSC 98 (15 March 1962)
15/03/1962 GAJENDRAGADKAR, P.B.
GAJENDRAGADKAR, P.B.
AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR
P.(CJ) WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA
CITATION: 1963 AIR 174 1962 SCR Supl. (3) 848
CITATOR INFO:
D 1963 SC1413 (7) R 1972 SC 254 (4) D 1974 SC
323 (9) RF 1975 SC1917 (14) RF 1976 SC1084 (12,15) R 1976 SC2207 (51)
ACT:
Criminal Liability-Members of unlawful
assemblyMaintainability of conviction-Common object and common intention-Distinction-Alteration
of conviction-Indian Penal Code 1860 (Act 45 of 1860). ss. 302, 149, 34.
HEADNOTE:
The two appellants, who were tried with three
others, were convicted under s. 302 read with s. 149 and s. 147 of the Indian
Penal Code. Two of these five persons tried together were acquitted. In the
charge these five accused persons and none others were mentioned as forming the
unlawful assembly and the evidence led in the case was confined to them alone.
The facts proved in the case unmistakably showed that the two appellants and
the other convicted person, who inflicted the fatal blow, were actuated by the
common intention of fatally assaulting the deceased. It was contended in this
Court that the conviction of the appellants under s. 302 read with s. 149 of
the Indian Penal Code was not sustainable in law in view of the acquittal of
two of the five accused persons who were alleged to have formed the unlawful
assembly.
Held, that the contention must prevail and
the conviction altered to one under s. 302 read with s. 34 of the Indian Penal
Code. Section 149 of Indian Penal Code prescribes vicarious or constructive
criminal liability for members of an unlawful 849 assembly which under s. 141
must consist of five or more persons. Consequently, as soon as, in the present
case, two of accused persons were acquitted, s. 141 ceased to apply and s.149
became inoperative.
In dealing with the applicability of s. 149
of the Indian Sit Penal Code, one has to remember the several' categories of
cases that come up before the courts for decision there under.
Dalip Singh v. State of Punjab, [1954] S.C.R.
145 and Bharwad Mepa Dana v. State of Bombay, [1960] 2 S.C.R. 172, referred to.
Kartar Singh v. State of Punjab, [1962] 2
S.C.R. 395, explained.
Like s. 149 of the Indian Penal Code, s. 34
of that Code also deals with cases of constructive liability. But the essential
constituent of the vicarious criminal liability under s. 34 is the existence of
common intention. Being similar in some ways, the two sections may in some
cases overlap. Nevertheless, common intention on which s. 34 has its basis is
different from the common object of unlawful assembly. Common intention denotes
action in concert and necessarily postulates a prearranged plan, a prior
meeting of minds and an element of participation in action. The acts may be
different and vary in character but they must be actuated by the same common
intention, common intention is different from the same intention or similar
intention.
Mahabub Shah v. King Emperor, (1945) L.R. 72
I.A. 148, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 186 of 1960.
Appeal by special leave from the judgment and
order dated March 18, 1960, of the Punjab High Court in Criminal Appeal No.
1040 of 1959.
Raghubir Singh and R. S. Gheba, for the
appellants.
N.S. Bindra and P. D. Menon, for the
respondent.
1962. March 15. The Judgment of the Court was
delivered by GAJENDRAGADKAR J.-This appeal by special leave arises out of a
criminal case in which the 850 appellants Mohan Singh and Jagir Singh along
with three others were charged with having committed offences under s.148 and
s.302 read with s.149, as well as s.323, read with s.149 of the Indian Penal
'Code. The three other persons who were thus charged along with the two appellants
were Dalip Singh and two Piara Singhs who were the sons of Ujagar Singh and
Bahadur Singh respectively. Of the five accused persons, Dalip Singh was also
charged under s.302. The case against these per. sons was tried by the II
Additional Sessions Judge at Ferozepore. He held that the charges framed
against the two Piara Singhs had not been proved beyond reasonable doubt. 'So,
giving them the benefit of doubt, he acquitted them. Dalip Singh was convicted
under sections 302 and 147 and the two appellants were convicted under s.302
read with sections 149 and 147. For the major offence of murder, all of them
were sentenced to imprisonment for life and for the minor offence under s.147,
each one of them was sentenced to six months' rigorous imprisonment. These
sentences were ordered to run concurrently. This order of conviction and
sentence was challenged by the said three accused persons by preferring an
appeal before the Punjab High Court. The High Court has accepted the findings
of the trial Judge and has confirmed the orders of conviction and sentence
passed against them.
Thereafter, the said three accused moved this
Court for special leave. The application for special leave filed by Dalip Singh
was dismissed, but that of the two appellants was granted. That is how the two
appellants have come to this Court by special leave, and on their behalf, Mr.
Raghubir Singh has urged that the conviction
of the appellants under s.302/149 is unsustainable in law, because as a result
of the acquittal of the two Piara Singhs, the provisions of s.149 were
inapplicable.
851 Before dealing with the merits of the
contention thus raised by the appellants, it is necessary to state briefly the
material facts' leading to the prosecution of the appellants. The incident giving
rise to the present case took place on the 9th May, 1959, at a village called
Malsian. The prosecution case is that on the said day, the five accused persons
named in the charge were members of an 'unlawful assembly and that in
prosecution of the common object of the said assembly, they committed rioting
and at that time were armed with deadly weapons. It has also alleged that in
pursuance of the said common object, Gurdip Singh, was murdered and injuries
were caused to Harnam Singh. That is the bases of the charge under s.148 I.P.C.
The second charge was that since Dalip Singh,
one of the accused, had inflicted a fatal injury on Gurdip Singh on his head in
prosecution of the common object of the unlawful assembly, all the members of
the assembly were guilty under s.302/149 of the Indian Penal Code for the
murder of Gurdip Singh. Dalip Singh was also charged under s.302 without
reference to s.149. That is the substance of the charge based on the allegation
that Gurdip Singh had been murdered in prosecution of the common object of the
unlawful assembly. For the injury caused to Harnam Singh, an additional charge
was framed under s.323/149. As we have already pointed out, in the present
appeal we are concerned with the conviction of the appellants under s.302/149.
It appears that the appellants Mohan Singh
and Jagir Singh are uncle and nephew respectively, the latter being the son of
Mohan Singh's brother Dalip Singh who was one of the accused in the present
case. There was a third brother named Tara Singh who was married to Tej Kaur,
the daughter of Gurdip Singh, the victim of the assault. Tara Singh was
murdered by some Muslims during 852 the communal disturbances that raged in the
Punjab in the wake of the partition of the country in 1947. As a result of the
said communal disturbances, the parties migrated from their homes in West
Pakistan to the East Punjab and in due course, were allotted land in village
Malsian. After her husband's death, Tej Kaur began to reside with her father
Gurdip Singh in village Ghandyala. Since Tej Kaur had left the village' of her
husband, Dalip Singh and Mohan Singh managed to get into possession of her
share of the Land.
After the holdings in village Malsian had
been consolidated, Tej Kaur obtained a separate holding of land as representing
the interest of her deceased husband, Tara Singh.
Thereupon, Mohan Singh and Dalip Singh
entered into possession of the said land after executing a 'pattanama' in her
favour. Having entered into possession of her land in this manner, they did not
care to pay the share of the produce to Tej Kaur regularly and in consequence,
the amounts due from them fell into arrears. Tej Kaur was thus compelled to
appoint her father Gurdip Singh as an attorney in order to realise the arrears
of tent and to take steps for evicting Mohan Singh and Dalip Singh from her
land.
When the attorney instituted eviction
proceedings, Mohan Singh and Dalip Singh paid up the arrears, but even so, Tej
Kaur succeeded in obtaining an order of eviction. The said order was challenged
by Mohan Singh and Dalip Singh by preferring an appeal, but the appeal failed
and the order of eviction was confirmed. That naturally led to an application
by Gurdip Singh for obtaining the execution of the said order. On this
application, warrants for possession were issued. It is because Gurdip Singh
was thus effectively protecting the interest of his daughter that he ultimately
met his death on the 10th May, 1959, at the hands of the appellants and their
companions.
853 Armed with the warrants of possession,
Gurdip Singh went to village Behak Grujran to meet his cousin Harnam Singh and
asked for his assistance. Accordingly Harnam Singh agreed to accompany Gurdip
Singh. On May 9, 1959, both of them went to Zira and requested the Patwari and
Girdawar to proceed to the spot and deliver to them the possession of Tej
Kaur's land. The Patwari, however, told them that since the Qanungo was not in
station, they might see him in the evening. While they were in the Court
compound, Dara Singh, the brother of Gurdip Singh's wife met them. He was also
requested to join them and he agreed. As suggested by the Patwari, the three of
them went to see him in the evening.
Then they all started towards the land in
order to deliver possession to Gurdip Singh. The fields in question were at a
distance about a mile from the village abadi. As they approached the fields,
they saw the appellant Mohan Singh grazing cattle nearby. Mohan Singh was
accordingly informed by the Chowkidar who had joined the party that they had
arrived to deliver possession of the land to Gurdip Singh.
Mohan Singh thereupon left the spot on the
pretext that he was hungry and could not wait. The Qanungo and the Patwari then
delivered possession of the land in dispute to Gurdip Singh and the delivery
was duly proclaimed in the village.
Since a formal report about the delivery of
possession had yet to be made, the party went back to the village. While they
were at a distance of about two squares, the appellants and their companions
were noticed coming out of a grove of 'khajoor' trees armed with a lathi each.
As soon as the appellants were seen by Gurdip Singh and Harnam Singh, they
tried to run away but the assailants chased them and surrounded them. Dalip
Singh opened the attack on Gurdip Singh by giving him a blow with a `dang' on
the head. Jagir Singh followed and used his `dang' on Gurdip 854 Singh's right
arm. As a result, Gurdip Singh fell down unconscious. The appellants then
assaulted Harnam Singh and gave him several blows on all parts of his body. An
alarm was raised by the other members of the party and so, the assailants were
afraid that villagers might arrive at the scene. That is why they ran away.
Gurdip Singh was then put in a bug and taken to the hospital at Zira. Medical
help was given to him, but that proved ineffective and he ultimately succumbed
to his injuries in the early hours of the next morning. Harnam Singh received
treatment and has recovered. It is on these facts that the appellants and their
companions were tried before the learned Additional Sessions Judge at
Ferozepore for having committed the offences as charged.
All the accused denied the said charges. The
learned trial Judge considered the evidence given by the principal eyewitnesses
Harnam Singh Phula, the Chowkidar and Sandhura Singh, the Qanungo; he also
examined the medical evidence and came to the conclusion that the said evidence
considered as a whole, proved the charge against the appellants under s. 302,
read with S. 149 and 147 beyond a reasonable doubt.
He likewise held that the charge against
Dalip Singh under s. 302 and 147 was satisfactorily proved. In regard to the
two Piara Singhs, however, be came to the conclusion that the motive for the
commission of the offence on which the prosecution relied, was not available
against them; that their names mentioned in the First Information Report did
not satisfactorily prove their identity and that on the probabilities, it
looked very unlikely that the two Piara Singhs by reason of their alleged
remote relationship with the three other accused or their friendship with them,
could have joined in making the assault on Gurdip Singh and Harnam Singh. He
hold that the reasons given by the prosecution for 855 their joining in the
assault appeared to him to be weak as so, he entertained a reasonable doubt as
to whether they had' really taken part in the assault at all. That is how he
gave them the benefit of doubt and acquitted them. It appears from his
judgment, however, that the learned Judge was satisfied that the large number
of injuries inflicted on Harnam Singh and Gurdip Singh and the complete absence
of injuries on the persons of the assailants would show that the odds were very
uneven and that emphasised that the assault must have been the work of more
than 3 or 4 members.
He also held that the direct evidence of
disinterested witnesses indicated that there were five assailants and so, he
had no doubt that the charges of unlawful assembly and rioting were brought
home even though he was acquitting two of the accused persons. In other words,
according to the learned Judge, though two of the five persons, charged were
acquitted, that still left five or more persons who were concerned with the
assault and so, the charge under s. 147 was established. It is in the light of
this finding that he convicted the appellants under s. 302/149.
When the appeal was argued before the High
Court on behalf of the appellants, the findings of the learned Judge on the
merits were challenged and the High Court considered the said challenge by
examining the evidence for itself.
Ultimately, it was satisfied that the view
taken by the trial Court was right. It appears that in respect of the charge
under s. 149, the only contention raised before the High Court was that the
said section did not apply because the incident which resulted in the death of
Gurdip Singh was no more than a chance encounter. The High Court examined this
argument and held that the assailants were lying in wait for Gurdip Singh and
so, the assault on Gurdip Singh was the work of the members of the 856 unlawful
assembly as alleged by the prosecution. No argument was urged before the High
Court that the acquittal of the two Piara Singhs in law rendered section 149
inapplicable to the case.
Mr. Raghubir Singh, however, contended that
the finding of the trial Court about the presence of five assailants even after
ignoring the alleged presence of the two Piara Singhs is not justified. Indeed,
his case is that like the charge which specifies five named persons as the assailants,
the whole of the evidence, refers to the said five persons as the assailants
and no one e se. This position is not disputed by Mr. Bindra who appears for
the State and so, we must proceed to deal with the merits of the appeal on the
assumption that both in the charge and in the evidence, the prosecution case in
that five named persons were the members of an unlawful assembly two of whom
have been acquitted; and that raises the question as to whether the acquittal
of the two Piara Singhs. leaves it open to the prosecution to rely upon section
149 against the appellants.
The true legal position in regard to the
essential ingredients of an offence specified by s. 149 are not in doubt.
Section 149 prescribes for vicarious or constructive criminal liability for all
members of an unlawful assembly where an offence is committed by any member of
such 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. It would thus be noticed that one of the
essential ingredients of section 14.9 is that the offence must have been
committed by any member of an unlawful assembly, and s. 141 makes it clear that
it is only where five or more persons constituted an assembly that an unlawful
assembly is born, provided of course; the other requirements of the said
section 857 as to the common object of the persons composing that assembly are
satisfied. In other words, it is an essential condition of an unlawful assembly
that its membership must be five or more. The argument, therefore, is that as
soon as the two Piara Singhs were acquitted, the membership of the assembly was
reduced from five to three and that made s.
141 inapplicable which inevitably leads to
the result that s. 149 cannot be invoked against the appellants. In our
opinion, on the facts of this case, this argument has to be upheld. We have
already observed that the point raised by the appellants has to be dealt with
on the assumption that only five persons were named in the charge as persons
composing the unlawful assembly and evidence led in the course of the trial is
confined only to the said five persons. 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 regarded as an
unlawful assembly.
In dealing with the, question as to the
applicability of s. 149 in such cases it is necessary to bear in mind the
several categories of cases which come before the Criminal Courts for their
decision. If five or more persons are named in the charge as composing an
unlawful assembly and evidence adduced by the prosecution proves that charge
against all of them, that is a very where s. 149 can be invoked. It is,
however, not necessary that five or more persons must be convicted before a
charge under s. 149 can be successfully brought home to any members of the
unlawful assembly. It may be that less than five persons may be charged and convicted
under s. 302/149 if the charge is that the persons before the Court, along with
others named constituted an unlawful assembly; the other persons so named may
not be 858 available for trial along with their companions for the reason, for
instance, that they have absconded. In such a case, the fact that less than
five persons are before the Court does not make section 1.49 inapplicable for
the simple reason that both the charge and the evidence seek to prove that the
persons before the court and others number more than five in all and as Such,
they together constitute an unlawful assembly. Therefore, in order to bring
home a charge under s. 149 it is not necessary that five or more persons must
necessarily be brought before the court and convicted. Similarly, less than
five persons may be charged under s. 149 if the prosecution case is that the
persons before the Court and others number in all more than five composed an
unlawful assembly, these others being persons not identified and so not named.
In such a case, if evidence shows that the persons before the Court along with
unidentified and un-named assailants or members composed an unlawful assembly,
those before the Court, can be convicted under section 149 though the unnamed.
and unidentified persons are not traced and charged. Cases may also arise where
in the charge, the prosecution names five or more persons and alleges that they
constituted an unlawful assembly. In such cases, if both the charge and the
evidence are confined to the persons named in the charge and out of the persons
so named two or more are acquitted leaving, before the court less than five
persons to be tried, then s. 149 cannot be invoked. Even in such cases, it is
possible that though the charge names five or more persons is composing an
unlawful assembly, evidence may nevertheless show that the unlawful assembly
consisted of some other persons as well who were not identified and so not
named. In such cases, either the trial court or even the High Court in appeal
may be able to come to the conclusion that the acquittal of some of the 859
persons named in the charge and tried will not necessarily displace the charge
under section 149 because along with the two or three persons convicted wore
others who composed the unlawful assembly but who have not been identified and
so have not been named. In such cases the acquittal of one or more persons
named in the charge does not affect the validity of the charge under section
149 because-on the evidence the court of facts is able to reach the conclusion
that the persons composing the unlawful assembly nevertheless were five or more
than five. It is true that in the last category of cases, the court will have
to be very careful in reaching the said conclusion. But there is no legal bar
which prevents the court from reaching such a conclusion. The failure to refer
in the charge to other members of the unlawful assembly un-named and
unidentified may conceivably raise the point as to whether prejudice would be
caused to the persons before the Court by reason of the fact that the charge
did not indicate that un-named persons also were members of the unlawful
assembly. But apart from the question of such prejudice which may have to be
carefully considered, there is no legal bar preventing the court of facts from
holding that though the charge specified only five or more persons, the
unlawful assembly in fact consisted of other persons who were not named and
identified. That appears to be the true legal position in respect of the
several categories of cases which may fall to be tried when a charge under
section 149 is framed.
In this connection we may refer to three
representative decisions of this Court. In Dalip Singh v. State of Punjab (1)
this Court has held that before section 149 can be applied, the Court must be
satisfied that there were it least five persons sharing the common object. It
has also been held that this does not mean that five persons must (1) [1954]
S.C.R. 145.
860 always be convicted before a. 149 can be
applied. If the Judge concludes that five persons were unquestionably present
and shared the common object, though the identity of some of them is in doubt,
the conviction of the rest would be good. In that case, this Court took the
view that the evidence adduced by the prosecution did not satisfactorily prove
the fact that the unlawful assembly was composed of five or more -persons, and
so, s. 149 was held to be inapplicable. In other words, on facts relevant for
the purpose of applying s. 149 this case is similar to the case with which we
are concerned in the present appeal.
In Bharwad Mepa Dana v. State of Bombay (1)
this Court was dealing with a case where twelve named persons were charged with
having formed an unlawful assembly with the common object of committing the
murder of three persons. At the trial before the Sessions Judge, seven of the
named persons were acquitted and five were convicted under s. 302/149 and s.
302/34. On appeal, the High Court acquitted one of the convicted persons but
maintained the conviction and sentence passed on the rest. The validity of the
said order of conviction and sentence was challenged before this Court on
several grounds, one of which was that s. 149 became inapplicable as soon as
eight out of the twelve persons named as members of the unlawful assembly were
acquitted.
In rejecting this argument, this Court
referred to the finding recorded by the High Court that the unlawful assembly
in question consisted of ten to thirteen persons out of whom only four were
identified. and not the rest; and held that it was open to the High Court to
come to such a finding. The argument which was argued against the validity of
such finding was put alternatively in two forms. It was first contended that
the prosecution case must be confined.
to them charge framed against the accused
per-sons and the charge in the Scissions Court referred (1) [1960] 2 S.C.R.
172.
861 to twelve named persons as composing the
unlawful assembly and and so, as soon as eight of them were acquitted, a. 149
became inapplicable. It was also urged that in coming to the conclusion that
the unlawful assembly consisted of ten to thirteen persons, the High Court was
making out a case of a new unlawful assembly and that was not permissible in a
criminal trial. Both these arguments were repelled by this Court and it was
hold that there was no legal bar which prevented the High Court from coming to
the conclusion that apart from the persons who were acquitted and excluding
them evidence adduced by the prosecution showed the presence of more than five
persons who composed the unlawful assembly, The assembly about the Existence of
which thee High court has made a finding is not a new assembly but the same
assembly as alleged by the prosecution. The only difference is that according
to the charge, all the members of the assembly were alleged to be known,
whereas on the evidence the High Court, has reached the conclusion that the
identity of all the members of the assembly has not been established though the
number of the members composing the assembly is definitely found to be five or
more. It is on this reasoning that this Court confirmed the, conviction of the
appellants under s. 302/149. Thus, this decision illustrates how s. 149 can be
applied even if two or more of the persons actually charged are acquitted.
The same principle has been enunciated by
this Court in Kartar Singh v. State of Punjab(1). According to this decision,
it is only when the number of 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. It is true that having
stated this position, this Court has also observed that the fact that certain
(1) E 19621 2 S.C.R 395.
862 persons are named in the charge as
composing an unlawful assembly, excludes the possibility of other persons to
be. in the said assembly especially when there is no occasion to think that the
witnesses who named all the accused could have committed mistakes in
recognising the assailants. It is on this observation that Mr. Raghubir Singh
relies. We, however, think that it would be unreasonable to read this statement
as laying down an unqualified proposition that whenever persons named, in the
charge are alleged to constitute an unlawful assembly it is legally not
permissible to the prosecution to prove during the trial that persons in
addition to those named in the charge also were of the said assembly. In other words,
what this observation intends to suggest is that whore persons named in the
charge are alleged to compose an unlawful assembly, the court of facts would be
slow to come to the conclusion that persons other than those named in the
charge were members of the said assembly. If however, it appears on, evidence
that persons not so named in the charge were members of the unlawful assembly
there is' no legal bar which prevents the courts from reaching that conclusion.
This position can and does arise where some
of the persons composing the unlawful assembly are not identified by the
witnesses and they are not named. In fact, the decision in the case of Kartar
Singh itself shows that this Court rejected the appellants contention that
their conviction under ss. 302 and 307, read with s.149 was invalid.
Therefore, we see no inconsistency between
the observations made in this case and the earlier decisions to which we have
just referred. The result is that in the circumstances of the present case, the
appellants are entitled to contend that s. 149 cannot be invoked against them.
That inevitably takes us to the question as
to whether the appellants can be convicted under 863 s.302/34. Like s. 149,
section 34 also deals with cases of constructive criminal liability. It
provides that where a criminal act is done by several persons in furtherance of
the common intention of all, each of such persons is liable for that act' in
the same manner as if it were done by him alone. The essential constituent of
the vicarious criminal liability prescribed by s. 34 is the existence of common
intention. If the common intention in question animates the accused persons and
if the said common intention leads to the commission of the criminal offence
charged, each of the persons sharing the common intention is constructively
liable for the criminal act done by one of them. Just as the, combination of
persons sharing the same common object is one of the features of an unlawful,
assembly, so the existence of a combination of persons sharing the same common
intention is one of the features of a. 34. In some ways the two sections are
similar and in some cases they may overlap. But, nevertheless, the common
intention which is the basis of s. 34 is different from the common object which
is the basis of the composition of an unlawful assembly.
Common intention denotes action-in-concert
and necessarily postulates the existence of a pre-arranged plan and that must
mean a prior meeting of minds. It would be noticed that cases to which s. 34
can be applied disclose an element of participation in action on the part of
all the accused persons. The acts may be different; may vary in their
character, but they are all actuated by the same common intention. It is now
well-settled that the common intention required by s. 34 is different from the
same intention or similar intention. As has been observed by the Privy Council
in Mahbub Shah v. King Emperor (1), common intention within' the meaning of s.
34 implies a pre-arranged plan, and to convict the accused of (1) (1945) L.R.
72. I.A.148.
864 an offence applying the, section it
should be proved that the criminal act was done in concert pursuant to the prearranged
plan and that the inference of common intention should never be reached unless
it is a necessary inference deducible from the circumstances of the case.
What then are the facts and circumstances
proved in the present case? It is proved that the appellants shared with Dalip
Singh the motive which impelled Dalip Singh to inflict the fatal blow on Gurdip
Singh. The close relationship between the appellants and Dalip Singh leaves no
room for doubt that they shared the same motive with Dalip Singh to the same
extent. It is also proved that Dalip Singh and the two appellants were lying in
wait for Gurdip Singh. We have also seen that when the party accompanying
Gurdip Singh told the appellant Mohan Singh that the Patwari and the Qanungo
had come on the spot to deliver possession of the land to Gurdip Singh, Mohan
Singh pretended that he was hungry and went away. Then he seems to have
contacted Dalip Singh and Jagir Singh and all the three were lying in wait for
Gurdip Singh, who, they knew, would pass that way. Thus the two appellants and
Dalip Singh, deliberately concealed themselves behind a grove of Khajoor trees
and were armed with lathis. This conduct on the part of the three assailants
clearly shows that they had the common intention of fatally assaulting Gurdip
Singh. That alone can explain why they were armed with lathis and why they hid
themselves behind the Khajoor trees. Besides, as soon as Gurdip Singh and
Harnam Singh came near the place where the appellants lay concealed, all of
them rushed on Gurdip Singh and chased him when he and Harnam Singh began to
run away. This conduct also clearly indicates the presence of the common
intention. After chasing the victims, three of them surrounded them and Dalip
Singh, gave 865 the fatal blow on Gurdip Singh. In the act 'of surrounding
Gurdip Singh, the two appellants undoubtedly played their part and thus helped
Dalip Singh. After Gurdip Singh was fatally assaulted, the three assailants
apprehended that the villagers would rush on the scene because an alarm had
then been raised and so, they ran away together. On these facts, the conclusion
appears to be inescapable that the appellants and Dalip Singh were actuated by
the common intention to kill Gurdip Singh and the attack made by Dalip Singh on
Gurdip Singh was in furtherance of the said common intention. Therefore, in our
opinion, there is no difficulty whatever in coming 'to the conclusion that the
appellants are guilty under section 302/34 of the Indian Penal Code. We have no
doubt that if the appellants had raised before the High Court the contention
that s. 149 was inapplicable to their case, the High Court would have without
any hesitation altered their conviction from under s. 302/149 into one under s.
302, read with s. 34.
The result is, the conviction of the
appellants is accordingly altered into one under section 302, read with section
34 of the Indian Penal Code. This modification in the order of the conviction
does not require any change in the order of sentence at all. For the offence
under section 302, read with s. 34 of which we are convicting them, they would
be sentenced to imprisonment for
Back
