Karnail Singh And Anr. vs The State Of Punjab

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 29 January, 1954

Coram: Venkatarama Ayyar

Karnail Singh and Anr. versus The State of Punjab, decided on 29 January 1954, was delivered by the Supreme Court of India. The judgment was authored by Justice Venkatarama Ayyar. The matter before the Court was an appeal, granted by special leave, filed by Karnail Singh and Malkiat Singh challenging the decision of the Punjab High Court. The High Court had affirmed the conviction recorded by the Additional Sessions Judge of Ferozepore under section 302 of the Indian Penal Code and had upheld the death sentence imposed on the two appellants. The factual matrix established by the lower tribunals was as follows: a protracted hostility existed between the appellants and their associates on one side and the deceased Gurbaksh Singh together with his associates on the other, a feud that had given rise to several criminal incidents and related court proceedings. On the evening of 27 January 1952, at approximately sunset, Gurbaksh Singh was seated inside his residence observing the Sabbath, while his sister, Miss Bholan, was present in the kitchen. The appellants, accompanied by their men and armed with rifles, arrived at the house, ascended onto the roof and challenged Gurbaksh Singh to emerge. In response, Gurbaksh Singh and Miss Bholan retreated to a chamber within the house and locked the door from the inside. The attackers then used spades to create openings in the roof, ignited flammable material such as dry twigs, and threw the burning material through the holes into the chamber, setting the building ablaze. Both Gurbaksh Singh and Miss Bholan were trapped inside the burning structure and perished. According to the prosecution, a brother of Gurbaksh Singh named Dev, who was away at the time of the incident, returned, was seized by the assailants, thrown into the flames, and also died. A relative of the deceased, Gurnam Singh, identified as PW-13, who was also a neighbour, managed to escape from the village and reported the incident at the police station in Nihal Singhwala, situated eight miles away, as evidenced by Exhibit PQ. The report reached the authorities at about 10.30 p.m. Upon receipt of this information, the police sub-inspector, PW-25, proceeded to the village accompanied by a party of constables and by Gurnam Singh. They discovered the house largely consumed by fire and recovered the charred remains of three bodies, which were identified as those of Gurbaksh Singh, his brother Dev, and Miss Bholan. Karnail Singh, one of the appellants, was observed at the scene and was apprehended immediately. Malkiat Singh, also mentioned in Exhibit PQ as a participant, was found in his residence bearing gunshot injuries and was likewise detained. Subsequently, eight individuals, including the two appellants, were charged under section 148 of the Indian Penal Code for forming an unlawful assembly with the purpose of burning Gurbaksh Singh’s house and for the murders of Gurbaksh Singh, Dev, and Miss Bholan, and they were also charged under section 302 read with section 149 for the murders. The Additional Sessions Judge of Ferozepore held that the evidence did not establish the case beyond reasonable doubt against two of the accused and consequently acquitted those two persons.

The trial court convicted six persons, including the appellants, under section 148 of the Indian Penal Code and under section 302 read with section 149, and imposed the death penalty on each of them. On appeal, the judges of the Punjab High Court observed that there could be no doubt that the incident occurred substantially as described by the prosecution witnesses and that the principal purpose of the accused was to murder the deceased Gurbaksh Singh because of the intense hostility between him and the main body of the accused. While the court acknowledged that it was quite possible that all six appellants had taken part in the incident, it held that the evidence against the four accused who were not appellants was inadequate to sustain their convictions. The court explained that the evidence against those four consisted solely of the testimony of persons who had been standing forty to fifty feet away from the scene and who claimed to have identified the accused only by the sound of their voices. Consequently, those four individuals were acquitted. Turning to the case of the two appellants, the court noted that the prosecution presented the testimony of two eyewitnesses, Gurnam Singh (identified as PW 13) and Maghar Singh (identified as PW 14). The court found Maghar Singh to be an unreliable witness, but it could not reject the testimony of Gurnam Singh. Nevertheless, the court cautioned that a conviction could not rest solely on Gurnam Singh’s evidence. The court found that two additional facts corroborated Gurnam Singh’s account: the presence of Karnail Singh at the spot of the occurrence and the existence of gunshot wounds on Malkiat Singh. Relying on this corroboration, the High Court confirmed both the conviction and the death sentences of the two appellants. Because four of the original accused were acquitted on appeal, the court set aside the conviction of the appellants under section 149 and substituted it with a conviction under section 34 of the Indian Penal Code.

The appellants raised two separate contentions. First, they argued that the evidence the High Court had accepted as reliable was insufficient to prove their guilt. Second, they contended that the conviction under section 34 was invalid because no charge had been framed against them under that provision. Regarding the first contention, counsel for the appellants emphasized that the High Court had identified only one eyewitness, PW 13, whose testimony could be relied upon, and that even this testimony required corroboration before it could form the basis of a conviction. The counsel maintained that the High Court erred in concluding that such corroboration existed. The trial court had relied on the circumstances that the appellants had been proved to have been present at the scene of the occurrence and that they had offered no satisfactory explanation for their presence. In relation to Karnail Singh, the police sub-inspector, identified as PW 25, personally observed him emerging from the burning house while holding a spear. Karnail Singh was found with injuries on his body, and his pyjama was stained with blood. He was seized on the spot, and both the spear and the pyjama were seized as evidence.

The items seized from the scene were entered into the evidence register as Exhibits P-12 and P-20. Regarding Malkiat Singh, the first information report, exhibited as PQ, listed his name, and the witness designated as P.W. 25 proceeded to Malkiat Singh’s residence where he discovered Malkiat Singh suffering from gunshot wounds and placed him under arrest. In the statement recorded from Karnail Singh under section 342 of the Criminal Procedure Code, he recounted that upon seeing the house of Gurnam Singh engulfed in flames he rushed to the location and was assaulted by unidentified culprits. He further stated that Malkiat Singh arrived to render assistance, and while they were grappling with the assailants, Karnail Singh himself was attacked and Malkiat Singh sustained a gunshot wound; subsequently both men returned to their respective homes. The statement made by Malkiat Singh did not contain comparable narration. No evidence was produced to indicate that any other individual or group was responsible for the acts, and consequently the learned judges rejected the appellants’ contention that the injuries were sustained while intervening against unknown assailants on behalf of a “bitterest enemy.”

The appellants argued that the mere fact of Karnail Singh’s presence at the place of occurrence did not, by itself, amount to corroboration and that corroboration would require proof of an additional incriminating act. Concerning Malkiat Singh, they maintained that the existence of gunshot wounds was inconclusive because the circumstances of their infliction were not established. They further contended that the learned judges’ hypothesis that Gurbaksh Singh might have shot him through a hole while he was on the roof lacked evidential support, conflicted with the medical evidence regarding the nature of the wounds, and was contradicted by the fact that no firearm was recovered from the house; therefore, they asserted that no link existed between Malkiat Singh and the incident at Gurbaksh Singh’s house. Regarding the accused’s statements that admitted their presence at the scene but explained that unknown culprits had set the house on fire, the appellants submitted that the statements must be considered in their entirety and that it was improper to accept the incriminating portions while disregarding the exculpatory portions. They relied on the observations of this Court in Hanumant v. State of Madhya Pradesh ([1952] S.C.R. 1091) at page 1111 to support this view. Accordingly, the appellants claimed that there was insufficient corroboration of the evidence of P.W. 13 to sustain their convictions. The Court noted that it was necessary to examine the evidence to determine what corroboration existed against each appellant. It concluded that, in the case of Karnail Singh, his presence at the scene, as disclosed by the evidence, was sufficient to corroborate the testimony of P.W. 13. The Court also reminded that Gurnam Singh was not an approver but a witness.

In the earlier part of the proceeding the court noted that no comment had been offered against the witness who was a relative of the deceased, and it was observed that any conviction based solely on his testimony would be unsafe. Consequently, what was required was not the level of corroboration that would be needed for an approver’s evidence, but rather proof sufficient to give the court confidence that the particular accused persons had indeed taken part in the murder of the deceased, as stated in Lachhman Singh v. State ([1952] S.C.R. 839 at p. 845). The court then turned to the evidence concerning Karnail Singh. It recorded that Karnail Singh had been seized at the scene while he was in possession of a spear and a blood-stained pyjama. Those items, the court held, provided a basis for inferring that he was involved in the crime and therefore satisfied the requirement of corroboration for his conviction.

The matter of Malkiat Singh presented a more complex situation. The records showed that Malkiat Singh had been arrested inside his own house bearing gunshot wounds. The court emphasized that unless it could be shown that those injuries were inflicted at the place where the murder occurred, the wounds alone would not be enough to link him to the offence. The court further observed that the appearance of his name in Exhibit PQ could not be treated as independent corroboration, because that reference was merely a repetition of the earlier statement of PW 13 and did not constitute separate evidence. Regarding the statement made by the accused under section 342 of the Criminal Procedure Code, the court accepted the established principle that a statement intended to be used as an admission must be read in its entirety, but where the statement contains distinct and separate matters, an admission contained in one part may be relied upon without reference to the other parts. In this case the accused’s admission that he had been present at or near the scene of the occurrence was a matter separate from his explanation of how he had received his injuries. The court noted that the learned judges had rightly disbelieved the appellant’s claim that the house had been set on fire by unknown enemies of Gurbaksh Singh and that those enemies had murdered him. Accordingly, the court saw no impediment to accepting the appellant’s admission of his presence at the scene as a valid admission.

The court also examined another strand of corroboration that the learned judges had relied upon. They had concluded, in the alternative, that Malkiat Singh’s gunshot wounds must have been received at the house of Gurbaksh Singh. One possibility they considered was that the injuries might have been caused by Gurbaksh Singh himself firing from within the house. The court found that no evidence supported this hypothesis, that the medical evidence actually contradicted it, and that no firearm had been recovered from the deceased’s residence. As an alternative, the judges suggested that the wounds could have resulted from a shot fired by one of Malkiat Singh’s own men. This alternative view was supported by the testimony of PW 14, who had stated that during the incident Malkiat Singh had reported being shot by one of his own men and had then left the scene. The court accepted that this evidence gave a plausible basis for the alternative explanation of how the injuries were inflicted.

The testimony of PW 14 was that, while the incidents were unfolding, Malkiat Singh declared that he had been shot by one of his own men and then left the scene. The appellant argued that because the learned judges had declined to act on PW 14’s evidence, the alternative theory advanced by that witness should be regarded as unsupported. The judges, however, had described PW 14’s evidence as “impossible to place any very great reliance on Maghar Singh’s evidence.” Despite this qualification, the judges later expressly referred to PW 14’s statement on the matter (see page 61 of the record) and accepted it as one of the possible alternatives (see page 65). In addition, the judges found that the gunshot wounds must have been inflicted at the place where the incident occurred and that the theory that Gurbaksh Singh fired the shot was rejected. On that basis there was no difficulty in concluding that the judges were prepared to accept PW 14’s evidence concerning the source of the shot. Consequently, the material on record was sufficient to hold that Malkiat Singh received the gunshot wounds inside the house of Gurbaksh Singh. This finding corroborates the testimony of PW 13. In light of this, the Court overruled the first contention raised by the appellant.

The next issue for determination was whether the conviction of the appellant under Section 302 read with Section 34 was illegal, given that the charge originally framed was only under Section 302 read with Section 149. The appellant contended that Section 149 and Section 34 differ in scope: Section 149 requires proof of a common object, whereas Section 34 demands proof of a common intention. The appellant therefore argued that a charge framed under Section 149 could not be substituted on appeal by a conviction under Section 34. To support this position, the appellant cited observations from the case of Dalip Singh v. State of Punjab, which stated that “Nor is it possible in this case to have recourse to Section 34 because the appellants have not been charged with that even in the alternative and the common intention required by Section 34 and the common object required by Section 149 are far from being the same thing.” It is true that a substantial difference exists between the two provisions. Nevertheless, as Lord Sumner observed in Barendra Kumar Ghosh v. Emperor (I.L.R. 52 Cal. 197 (P.C.)), the provisions overlap to some extent, and it is a factual determination in each case whether the charge under Section 149 overlaps with the ground covered by Section 34. If the common object that forms the basis of a Section 149 charge does not necessarily involve a common intention, then substituting Section 34 for Section 149 could prejudice the accused and should not be allowed. Conversely, if the facts to be proved and the…

The Court observed that if the evidence required to prove the charge under section 149 would be identical to the evidence required to prove a charge under section 34, then the omission of a section 34 charge could not prejudice the accused. In such circumstances, the replacement of section 149 by section 34 in the charge was regarded as a purely formal alteration. The Court read the observations in Dalip Singh v. State of Punjab as supporting the general proposition that a charge framed solely under section 149 does not permit a recourse to section 34. Whether a substitution is permissible, the Court held, must be decided on the facts of each case. This approach was consistent with the view expressed by this Court in Lachhman Singh v. The State ([1952] S.C.R. 839), where the substitution of section 34 for section 149 was upheld because the facts showed that the accused could have been charged either under section 302 read with section 149 or under section 302 read with section 34.

Applying this principle to the present case, the Court examined the record and found that both appellants, who harboured a long-standing enmity with Gurbaksh Singh, climbed onto the roof of his house and set fire to it while the deceased and Mst. Bholan were inside the dwelling. If their object under section 149 was to burn the house and cause the death of Gurbaksh Singh, the same purpose was also their intention under section 34. Consequently, on the facts there was no material distinction between the object required by section 149 and the intention required by section 34. The Court also noted that the charge, although it mentioned section 149, specifically stated that in prosecution of the common object the accused intentionally set fire to the house and murdered Gurbaksh Singh and Mst. Bholan. Satisfied that substituting section 34 for section 149 in the charge did not prejudice the appellants, the Court held that the substitution could not be challenged. Accordingly, the appeal was dismissed. The agents appearing for the parties were Naunit Lal for the appellants and R. H. Dhebar for the respondents.