Karnail Singh and Another v. State of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 64 of 1953

Decision Date: 29 January 1954

Coram: Natwarlal H. Bhagwati, T.L. Venkatram Ayyar, B. Jagannadhadas

In the matter titled Karnail Singh and Another versus the State of Punjab, the Supreme Court rendered its judgment on the ninth day of January, 1953. The judgment was authored by Justice Natwarlal H. Bhagwati, who sat on the bench together with Justices Ayyar, T. L. Venkatarama, and Jagannadhadas B. The case was cited in several law reports, including the 1954 AIR 204, the 1954 Supreme Court Reporter 904, and later references such as D 1955 SC 274, RF 1956 SC 116, R 1956 SC 238, R 1956 SC 546, C 1965 SC 328, F 1973 SC2221, and F 1990 SC1982. The statutory provisions under consideration were sections 34 and 149 of the Indian Penal Code, Act XLV of 1860, and the central question concerned the scope of the charge under section 302 read with section 149, the validity of a conviction under section 302 read with section 34, and whether a conviction under the former could be replaced by the latter on appeal.

The petitioners, Karnail Singh and another accused, contended that their conviction under section 302 of the Indian Penal Code, read in conjunction with section 34, was illegal because the original charge had been framed only under section 302 read with section 149. They argued that section 149 required proof of a common object, whereas section 34 demanded proof of a common intention, and therefore an appellate court could not substitute the charge under section 34 for that under section 149. The Court observed that although there is a substantial difference between the two sections, they sometimes overlap, and the determination of overlap depends on the facts of each case. The Court explained that if the common object described in a section 149 charge does not necessarily involve a common intention, substituting section 34 would prejudice the accused and should not be permitted. Conversely, if the facts to be proved and the evidence required for a section 149 charge would be identical to those needed for a section 34 charge, the failure to charge under section 34 would not cause prejudice, and the substitution would be merely formal. The Court rejected any blanket rule that precludes recourse to section 34 when the charge is solely under section 149, holding that the applicability of section 34 must be decided on a case-by-case basis. Applying this principle to the present facts, the Court concluded that the circumstances warranted the use of section 34.

The judgment referenced several earlier authorities, including Dalip Singh v. State of Punjab (A.I.R. 1953 S.C. 364), Bareizdra Kumar Ghosh v. Emperor (I.L.R. 52 Cal. 197 P.C.), and Lachman Singh v. The State ([1952] S.C.R. 839). The matter was filed as Criminal Appeal No. 64 of 1953, an appeal by special leave from the judgment and order of the High Court of Punjab. The Court’s decision addressed the procedural issue of whether the appellate substitution of the statutory provision was permissible, ultimately holding that the substitution was justified in the facts of this case and that the conviction under section 302 read with section 34 was valid.

On 9 June 1953 the High Court of Judicature for the State of Punjab at Simla, comprising Justices Falshaw and Kapur, rendered a judgment arising from the judgment and order dated 15 December 1952 of the Court of the Additional Sessions Judge, Ferozepore, in Sessions Case No 50 of 1952 and Trial No 57 of 1952. Counsel Jai Gopal Sethi, assisted by R L Kohli, appeared for the appellants, while counsel Porus A Mehta represented the respondent. The judgment was delivered on 29 January 1954 by Justice Venktarama Ayyar. The present proceeding was an appeal by special leave filed by Karnail Singh and Malkiat Singh against the judgment of the Punjab High Court, which had affirmed their conviction by the Additional Sessions Judge of Ferozepore under section 302 of the Indian Penal Code and the death sentence imposed on them. The factual findings recorded by the lower courts were as follows: a long-standing enmity existed between the appellants and their associates on one side and the deceased Gurbaksh Singh and his associates on the other, a hostility that had already produced several crimes and related court proceedings. On 27 January 1952, at about sunset, Gurbaksh Singh was seated inside his house observing the sabbath while his sister, Ms Bholan, was in the kitchen. At that moment the appellants and their men arrived armed with rifles, ascended to the roof of Gurbaksh Singh’s house and challenged him to come out. In response, Gurbaksh Singh and Ms Bholan withdrew to a side-room (kotha) and bolted the door from within. The appellants and their men then used spades to make holes in the roof, ignited flammable material such as dry twigs, and threw the burning material through the holes into the kotha, thereby setting the building on fire. Both Gurbaksh Singh and Ms Bholan were trapped inside and were burned to death. According to the prosecution, the brother of Gurbaksh Singh, named Dev, who had been away at the time, returned, was seized, thrown into the flames, and also perished by burning. Meanwhile, Gurnam Singh, identified as PW 13, a cousin and neighbour of Gurbaksh Singh, escaped from the village and reported the incident at the police station in Nihal Singhwala, a location eight miles distant, as shown in Exhibit PQ. The report was made at approximately 10:30 p.m. Upon receiving this information, Sub-Inspector PW 25, accompanied by a constable party and Gurnam Singh, proceeded to the village. They discovered the house largely destroyed by fire and recovered the charred remains of three bodies, which were identified as those of Gurbaksh Singh, Dev, and Ms Bholan. Karnail Singh, one of the appellants, was observed at the scene and was arrested on the spot. Malkiat Singh, also named in Exhibit PQ as a participant, was found in his house with gunshot wounds and was likewise arrested. Ultimately, eight individuals, including the two appellants, were charged under section 148 of the Indian Penal Code for forming an unlawful assembly with the objective

In the trial the accused were charged under section 148 of the Indian Penal Code for forming an unlawful assembly with the intention of burning the house of Gurbaksh Singh and murdering him, Dev and Mat Bholan, and also under section 302 read with section 149 for the murders. The Additional Sessions Judge at Ferozepore held that the prosecution had not proved the case beyond doubt against two of the accused and therefore acquitted them. He convicted the remaining six persons, including the appellants, under sections 148 and 302 read with section 149 and imposed the death penalty on each of them.

On appeal the learned judges of the Punjab High Court observed that the incident had indeed occurred substantially as described by the prosecution witnesses and that the principal object of the perpetrators was to kill Gurbaksh Singh because of a deep-seated enmity between him and the main body of the accused. While it might be true that all six appellants participated, the Court found that the evidence against the four accused who were not appellants was insufficient to sustain a conviction. Their prosecution was based solely on the testimony of persons who stood at a distance of forty to fifty feet from the scene and who claimed to identify the accused only by voice. Consequently, those four men were acquitted.

Turning to the two appellants, the Court noted that the evidence of two eyewitnesses, Gurnam Singh (P.W. 13) and Maghar Singh (P.W. 14), was on record. It held that Maghar Singh was not a reliable witness, but that nothing could be said against the testimony of Gurnam Singh. Nevertheless, the Court considered it unsafe to base a conviction solely on Gurnam’s evidence. The Court found that the presence of Karnail Singh at the spot of the occurrence and the fact that Malkiat Singh was found with gunshot wounds provided sufficient corroboration of Gurnam’s testimony. Accordingly, the conviction and death sentence of the appellants were confirmed.

Because four of the originally convicted persons were acquitted on appeal, the High Court set aside the conviction of the appellants under section 149 and substituted it with section 34 of the Indian Penal Code. The appellants raised two objections. First, they contended that the evidence the Court had accepted as reliable was insufficient to establish their guilt. Second, they argued that their conviction under section 34 was invalid because no charge had been framed against them under that provision.

Addressing the first objection, counsel for the appellants argued that the learned judges had held that the only eyewitness whose evidence deserved credence was P.W. 13, and that even this testimony could not stand without corroboration. The Court below, however, had relied on the circumstance that the appellants were proven to have been present at the scene and that they offered no satisfactory explanation for their presence. Regarding Karnail Singh, the police sub-inspector (P.W. 25) had actually seen him emerge from the burning house carrying a spear, with injuries on his person and a blood-stained pyjama; the spear and pyjama were seized and marked as exhibits P-12 and P-20. Concerning Malkiat Singh, his name appeared in the first information report, and P.W. 25 found him at his house with gunshot wounds and arrested him. In the statement given by Karnail Singh under section 342 of the Criminal Procedure Code, he recounted that when he saw Gurnam Singh’s house on fire, he went there, was assaulted by the culprits, that Malkiat Singh came to his aid, that while they were grappling with the culprits both were attacked, Malkiat received a gunshot wound and they subsequently fled to their own houses. Malkiat Singh’s statement was on a similar line. No evidence was placed that any other person …

There was no satisfactory explanation offered by the accused for their presence at the scene. Regarding Karnail Singh, the police sub-inspector identified as PW 25 actually saw him emerge from the burning house while holding a spear. He was found with injuries on his body and his pyjama was stained with blood. He was arrested on the spot, and the spear together with the blood-stained pyjama were seized and recorded as Exhibits P-12 and P-20. In the case of Malkiat Singh, his name appeared in the first information report marked as Exhibit PQ. PW 25 proceeded to Malkiat Singh’s residence, discovered him suffering from gunshot wounds, and placed him under arrest. In a statement made by Karnail Singh under section 342 of the Criminal Procedure Code, he recounted that upon seeing the house of Gurnam Singh ablaze, he went to the location and was assaulted by the culprits. He said that Malkiat Singh arrived to assist him, and while they were grappling with the assailants, Karnail Singh was attacked and Malkiat Singh received a gunshot wound; thereafter both of them returned to their homes. The statement recorded from Malkiat Singh was substantially similar. No evidence was produced showing that any other persons were responsible for the incident, and consequently the learned judges rejected the appellants’ claim that “they received these injuries while intervening against some unknown assailants on behalf of their bitterest enemy.” The appellants contended that merely being present at the place of occurrence did not constitute any corroboration unless an additional incriminating act was proven. Concerning Malkiat Singh, it was argued that the mere presence of gunshot wounds was inconclusive because there was no explanation of how the wounds were inflicted. It was further asserted that the trial court’s theory that Gurbaksh Singh might have shot him through a hole in the roof was wholly unsupported by the medical evidence regarding the nature of the wounds, and that no firearm was recovered from the house; therefore, nothing linked Malkiat Singh to the incident at Gurbaksh Singh’s house. Regarding the accused’s statements admitting their presence but asserting that unknown culprits had set the house on fire, it was argued that the statements should be considered in their entirety and that it was improper to accept only the incriminating portions while rejecting the exculpatory parts, citing the observations of this Court in Hanumant v. State of Madhya Pradesh at page 1111. The appellants maintained that, on this basis, there was insufficient corroboration of PW 13’s evidence to support their conviction. Consequently, it was necessary, in light of this contention, to examine the evidence in detail.

In order to determine the extent of corroboration against each appellant, the Court examined the evidence relating to both individuals. Regarding Karnail Singh, the Court found that his presence at the scene of the incident, as shown by the circumstances disclosed in the record, was enough to corroborate the testimony of PW 13. The Court noted that Gumam Singh was not an approver but a witness who was a relative of the deceased; the learned Judges had found no basis to rely solely on his evidence and therefore required corroboration because a conviction could not rest on his solitary testimony. The Court explained that the type of corroboration required in such cases was not the level needed to support an approver’s statement but rather sufficient assurance that the evidence before the Court truly indicated that the persons named were involved in the murder of the deceased, as articulated in Lachhman Singh v. State. The Court further observed that Karnail Singh had been apprehended at the spot while carrying a spear and wearing a blood-stained pyjama, pieces of physical evidence that supported the inference of his participation in the crime.

The situation involving Malkiat Singh was described as more complex. He had been arrested inside his own house with gunshot wounds on his body, and the Court held that unless it could be shown that those wounds were inflicted at the scene of the occurrence, the fact of his injuries alone would not link him to the crime. The Court agreed that the mere appearance of his name in Exhibit PQ could not be treated as adequate corroboration because that reference was merely the earlier statement of PW 13 and did not constitute independent evidence. Referring to the statement made by the accused under section 342 of the Criminal Procedure Code, the Court explained that while an admission intended for use must ordinarily be read in its entirety, distinct and separate matters within that admission may be considered independently. In this case, the appellant’s admission that he was present at or near the scene was distinct from his explanation of how he received his injuries. The learned Judges had, in the Court’s view, correctly disbelieved the appellant’s claim that unknown enemies of Gurbaksh Singh had set fire to the house and murdered him; consequently, the Court saw no obstacle to treating the appellant’s assertion of his presence at the scene as a valid admission. Additionally, the learned Judges had relied on another piece of corroboration: their view that the gunshot wounds must have been received by Malkiat Singh at Gurbaksh Singh’s house. They recorded this finding alternatively, observing that the injuries might have been caused by Gurbaksh Singh firing from inside the house.

The Court observed that the allegation that the deceased’s house contained the firearm used in the shooting was unsupported by any evidence, and that the medical testimony actually contradicted that suggestion. Moreover, the prosecution had failed to produce the alleged weapon from the premises, which further weakened the proposition that the gun had been present at the scene.

In an alternative line of reasoning, the Court noted that the injuries might have been caused by a shot fired by one of the deceased’s own associates. This view was bolstered by the evidence of PW-14, who testified that, while the incidents were unfolding, Malkiat Singh declared that he had been shot by one of his own men and then departed the location. The appellant argued that because the trial judges had declined to rely on PW-14’s testimony, this alternative hypothesis should be considered unsupported. The trial judges, however, had described PW-14’s evidence as “impossible to place any very great reliance on Maghar Singh’s evidence,” yet they also expressly referred to that testimony on the relevant issue and admitted it as a permissible alternative, as recorded on page 61 and accepted on page 65 of the record.

Having found that the gunshot wounds were necessarily inflicted at the place where the occurrence took place, and having rejected the theory that Gurbaksh Singh himself discharged the fatal shot, the Court concluded that the judges were prepared to accept PW-14’s statement on that point. Consequently, the Court held that there existed ample material to conclude that Malkiat Singh received the gunshot wounds inside Gurbaksh Singh’s house, and that this finding sufficiently corroborated the evidence of PW-13. On this basis, the Court overruled the appellant’s first contention.

The subsequent issue before the Court concerned whether the conviction of the appellant under section 302 read with section 34 was illegal, given that the charge framed at trial was only under section 302 read with section 149. The appellants contended that section 149 and section 34 operated on different legal foundations: section 149 required proof of a common object, whereas section 34 demanded proof of a common intention, and therefore a charge under section 149 could not be substituted by a charge under section 34 on appeal. The appellants relied upon the observations in Dalip Singh v. State of Punjab(1), which stated that the appellants had not been charged with section 34 even in the alternative and that the common intention required by section 34 and the common object required by section 149 were “far from being the same thing.” While acknowledging the substantive distinction between the two provisions, the Court also noted the passage quoted by Lord Sumner in Barendra Kumar Ghosh v. Emperor(1), which recognized that the provisions overlap to some extent and that the question of overlap must be determined on the facts of each case.

The Court explained that the scope of section 34 differs from that of section 149. It observed that if the common object forming the basis of a charge under section 149 does not necessarily imply a common intention among the accused, then replacing the charge with one under section 34 could prejudice the accused and therefore should not be allowed. Conversely, the Court held that where the facts to be proved and the evidence to be produced for a charge under section 149 would be identical to those required for a charge under section 34, the omission of a section 34 charge would not cause any prejudice. In such circumstances, the substitution of section 34 for section 149 is merely a formal matter. The Court clarified that the observations in Dalip Singh v. State of Punjab(1) are not to be read as establishing a universal rule that section 34 cannot be invoked when the charge is solely under section 149. Rather, the availability of such recourse depends on the particular facts of each case. This approach aligns with the view expressed in Lachhman Singh v. The State(1), where the Court upheld the substitution of section 34 for section 149 because the facts were such that the accused could have been charged alternatively either under section 302 read with section 149 or under section 302 read with section 34.

Applying this principle to the present matter, the Court examined the record and found that both appellants, who harboured a long-standing enmity with Gurbaksh Singh, ascended the roof of his house and set fire to it while the deceased and Mst. Bholan were confined inside. The Court concluded that if the object of the accused under section 149 was to burn the house and cause the death of Gurbaksh Singh, that same purpose also satisfied the intention required under section 34. Accordingly, there was no factual distinction between the object and the intention in this case. The Court also noted that the charge sheet, although referencing section 149, expressly stated that in prosecution of the common object the accused intentionally set fire to the house and murdered Gurbaksh Singh and Mst. Bholan. Having satisfied itself that the substitution of section 34 for section 149 did not prejudice the appellants, the Court held that the substitution was permissible. Consequently, the appeal was dismissed. Agent for the appellants: Naunit Lal. Agent for the respondent: R. H. Dhebar. (1) A.I.R. 1953 S.C. 364. (2) [1952] S.C.R. 839.