Suraj Pal vs The State Of Uttar Pradesh

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

Court: supreme-court

Case Number: Criminal Appeal No. 139 of 1954

Decision Date: 01/03/1955

Coram: B. Jagannadhadas, Vivian Bose, Bhuvneshwar P. Sinha

In the matter titled Suraj Pal versus The State of Uttar Pradesh, the Supreme Court of India rendered its judgment on 1 March 1955. The judgment was authored by Justice B. Jagannadhadas and the bench comprised Justices B. Jagannadhadas, Vivian Bose, and Bhuvneshwar P. Sinha. The petitioner was Suraj Pal and the respondent was the State of Uttar Pradesh. The formal citation for the decision is reported as 1955 AIR 419 and 1955 SCR (1) 1332. The applicable statutory framework involved the Indian Penal Code (Act XLV of 1860), specifically sections 302 and 307, and the Code of Criminal Procedure (Act V of 1898), specifically sections 236 and 237, which were relevant to the question of a retrial.

The headnote of the judgment explained that when an individual is charged together with others under sections 302 and 307 of the Indian Penal Code, each charge being read in conjunction with section 149, the convictions and sentences imposed for the substantive offences under sections 302 and 307 are erroneous if the charges are not specifically framed for each distinct head of criminal liability. The headnote described the failure to frame distinct charges as a serious lacuna in the proceedings, emphasizing that the proper framing of a specific charge for every separate criminal liability is the foundation for a valid conviction and subsequent sentence. Accordingly, the headnote held that convictions and sentences of death under section 302 and transportation for life under section 307 could not be upheld unless the Court was satisfied, based on the facts of the case, that the accused had not suffered prejudice during the trial.

The headnote further examined whether the examination of the accused under section 342 of the Code of Criminal Procedure, concerning the offences under sections 302 and 307, could be relied upon to eliminate the likelihood of prejudice. It stated that this issue must be determined with reference to the specific facts and circumstances of each case. Moreover, the headnote directed that all the circumstances of the case, together with the evidence and material on record, should be scrutinised to decide whether a retrial is warranted.

The judgment itself proceeded under the criminal appellate jurisdiction in Criminal Appeal No. 139 of 1954. The appeal was filed by special leave from the judgment and order dated 29 April 1954 of the Allahabad High Court in Criminal Appeal No. 1101 of 1953, which in turn arose from the judgment and order dated 3 September 1953 of the Sessions Judge at Fatehpur in Sessions Trial No. 50 of 1953. Counsel for the appellant were Sadhan Chandra Gupta and Janardhan Sharma, while counsel for the respondent were K. B. Asthana and C. P. Lal. The judgment, delivered on 1 March 1955, noted that this was an appeal by special leave from the judgment of the High Court at Allahabad. The sole appellant before the Supreme Court had been convicted by the Sessions Court under sections 148, 307, and 302, receiving a rigorous imprisonment term of two and a half years under section 148, transportation for life under section 307, and the death penalty under section 302. The convictions and sentences had been upheld by the High Court. The record indicated that at trial there were nineteen other accused persons alongside the appellant; all were convicted and sentenced under various provisions of the Indian Penal Code. On appeal, ten of those co-accused were acquitted by the High Court and the convictions of the remaining nine were partially modified, although the present appeal concerned only the appellant’s convictions.

The appellant had been convicted under sections 148, 307 and 302 of the Indian Penal Code and was sentenced respectively to rigorous imprisonment for two and a half years, transportation for life and death. The High Court affirmed these convictions and sentences. At the trial there were nineteen other accused persons together with the appellant; the trial court found all of them guilty and imposed sentences under various provisions of the Indian Penal Code. On appeal, the High Court acquitted ten of those co-accused and altered the convictions and sentences of the remaining nine, but the present appeal did not concern those nine. The offences alleged to have been committed occurred in the evening of 4 January 1953, shortly before sunset, in the village of Sonari in Fatehpur district, Uttar Pradesh. During that incident two individuals, identified as Bisheshwar and Surajdin, were said to have sustained gun-shot injuries; Bisheshwar survived while Surajdin died instantly. The background to the incident involved a longstanding rivalry between two factions in Sonari, each having previously filed criminal prosecutions against the other. The accused in the present case belonged to one faction, whereas the prosecution witnesses and the deceased belonged to the opposite faction. In 1946 a riot between the two groups resulted in the assault of two present prosecution witnesses and led to a criminal case in which some of the present accused were convicted and sentenced, the opposite-faction members serving as prosecution witnesses. Five months before the 4 January incident another riot occurred in the village, during which a member of the accused’s faction, Rain Bharosey, was killed. Consequently fifteen persons from the opposing faction were prosecuted; the case had been committed to the Sessions Court but the trial had not yet commenced at the time of the incident. According to the prosecution, the immediate cause of the 4 January episode was that certain accused persons sought to persuade, or to prevent, a member of the opposite faction named Bisheshwar (identified as PW 2) from providing “pairavi” – active assistance in legal proceedings – on behalf of the accused in the pending case. On the evening in question Bisheshwar, together with two others, Bhurey Lal (PW 1) and Ram Saran (PW 3), were sitting in front of Ram Saran’s house when the appellant and the other accused arrived.

The accused approached the witnesses carrying lathies in their hands. According to the evidence, the appellant demanded that Bisheshwar, who was P.W. 2, stop assisting the accused in the pending case by performing pairavi. When Bisheshwar refused to comply with this demand, the appellant is said to have drawn a pistol from his inner pocket and discharged a shot at Bisheshwar. The bullet caused Bisheshwar to collapse on the ground. The other two witnesses, identified as P.W. 3 and P.W. 2, are reported to have dragged the wounded Bisheshwar inside the house, to have chained the door from the inside, and to have climbed onto the roof to raise an alarm. The alarm attracted a number of persons belonging to the opposite party, who rushed to the scene. Among those who arrived was Surajdin, who at that moment was cutting fodder at the house of Bhurey Lal, P.W. 1. The appellant allegedly fired his pistol at Surajdin as well. The shot struck Surajdin, who fell down and died instantly at the spot. Another individual, Gaya Prasad, is said to have sustained only minor injuries from a lathi. After these events, the accused party allegedly fled the scene. A first information report was lodged by Bhurey Lal, P.W. 1, at about midnight on the same night at a police station located approximately nine miles from the incident site. The police arrived at the location the following morning and conducted a routine investigation. On 22 February 1953, the police submitted a charge-sheet charging offences under sections 147, 148, 323 / 149 and 307 / 149 of the Indian Penal Code. The portion of the charge-sheet relating to section 323 / 149 was intended to address the minor injuries allegedly inflicted on Gaya Prasad, while the portion under section 307 / 149 was meant to address the gunshot wounds allegedly suffered by Bisheshwar, P.W. 2. Notably, the charge-sheet made no reference to any offence concerning the death of Surajdin caused by the pistol shot. The magistrate took cognizance of the case based on this charge-sheet and initiated committal proceedings. Subsequently, the complainant-party observed that the police charge-sheet did not include an offence under section 302 of the Indian Penal Code. Consequently, on 2 May 1953, a private complaint was filed before the same magistrate, who was then hearing the committal proceedings. The private complaint was filed by Bisheshwar, identified as P.W. 1, who had also lodged the original first information report on 5 January 1953, and it set out substantially the same facts. The magistrate placed this private complaint on the record, and the inquiry arising from it was merged with the inquiry already pending under the police charge-sheet. Ultimately, the magistrate committed all twenty accused to stand trial before the Sessions Judge, framing charges under sections 147, 323 / 149, 307 / 149 and 302 / 149, together with a specific charge under section 148 of the Indian Penal Code.

The magistrate framed two specific charges at the committal stage, one against Suraj Pal for being armed with a pistol and another against Dharm Raj for being armed with a pharsa at the time the rioting took place, and no amendment or alteration was made to those charges before the case proceeded to the Sessions Court. The defence of the accused, aside from a general denial that they had any part in the incident and a denial that they were present at the occurrence, asserted that the complainant’s party, which included the deceased Surajdin, had formed an unlawful assembly whose common object was to beat a villager named Ram Pal. That Ram Pal later appeared as a prosecution witness during the committal proceedings in the criminal case that was then pending against the present accused. The defence further claimed that a member of the complainant’s party, identified as Ram Bhawan, was the person who during the incident fired pistol shots into the air and subsequently discharged a pistol that struck and killed Surajdin. The learned Sessions Judge, after hearing the evidence, found all of the accused guilty of the various offences that had been charged and imposed sentences on each of them. On appeal, the High Court examined the prosecution evidence by focusing on three distinct questions: first, whether the manner in which the prosecution described the incident could be accepted; second, whether the prosecution’s case regarding the presence and participation of the various persons could be accepted; and third, what specific offence, if any, could be established against each accused individual. Regarding the first question, the High Court accepted the view that the incident occurred as alleged by the prosecution. Concerning the second question, the High Court set out in detail a number of reasons why the prosecution evidence, insofar as it implicated particular individuals, could not be accepted at face value and therefore required careful scrutiny. Applying criteria that the Court deemed necessary and appropriate for such scrutiny, the High Court concluded that the convictions of ten out of the twenty persons before it should be set aside, while the remaining ten persons, including the present appellant Suraj Pal, were held to be participants in the rioting. Accordingly, the Court confirmed the conviction of those ten persons under section 147 of the Indian Penal Code. As to the charge under section 148 of the Indian Penal Code, the Court acquitted Dharm Raj but upheld the conviction of Suraj Pal on the ground that he was found to be in possession of a pistol at the time of the rioting. Three further charges remained against the ten persons: section 323 coupled with section 149 for injuries inflicted on Gaya Prasad, section 307 coupled with section 149 for the gun-shot wounds suffered by Bisheshwar, and section 302 coupled with section 149 for the murder of Surajdin. The Court held that the allegation of assault on Gaya Prasad was not proved beyond reasonable doubt, and therefore the accused were acquitted of that particular charge.

Consequently, every accused individual was acquitted of the charge relating to the injuries to Gaya Prasad. Regarding the remaining two charges—those under sections 307 together with 149 and sections 302 together with 149—the High Court concluded that neither the attempted killing of Bisheshwar by pistol fire nor the actual killing of Surajdin by pistol fire could be characterized as having been committed in prosecution of the unlawful assembly’s common object, nor could it be said that the accused knew such outcomes to be likely. Accordingly, the Court held that none of the accused could be found guilty under section 149 in connection with either the attempt on Bisheshwar’s life or the death of Surajdin. Nevertheless, the evidence demonstrated that the person who discharged the pistol against both victims was the appellant Suraj Pal; therefore, the Court found him personally guilty of the offences punishable under sections 307 and 302 of the Indian Penal Code. On that basis, the High Court set aside the convictions and sentences of all the other accused under the combined provisions of sections 307/149 and 302/149, while it affirmed the appellant’s convictions under sections 307 and 302 and upheld his sentence of life imprisonment for the attempt on Bisheshwar’s life and the death sentence for Surajdin’s murder. The Court also convicted the remaining nine individuals under section 323 together with 149 for the injuries sustained by PW 2 and imposed the appropriate sentences upon them. From the foregoing procedural narrative, a critical observation emerges: no direct and individual charge was ever framed against the appellant specifically for the offences under sections 307 and 302 of the Indian Penal Code. The consequential question, therefore, is whether convictions and sentences for those offences may be sustained in the absence of such direct charges. The Court observed that a charge against a person as a member of an unlawful assembly for an offence committed by any member of that assembly in prosecution of its common object differs fundamentally from a charge against an individual for an offence he himself directly committed while being a member of the assembly. Liability under the latter category pertains solely to acts personally performed by the accused, whereas liability under the former extends to acts performed by any other member of the assembly, provided those acts were undertaken in pursuit of the assembly’s common object or were sufficiently foreseeable to the members. A charge under section 149 of the Indian Penal Code therefore places the accused on notice of only two factual allegations: first, that the offence was committed by one of the members of the unlawful assembly to which he belongs, and second, that the offence was committed in prosecution of the assembly’s common object or was an act the members knew to be likely.

In this case, the Court observed that section 149 of the Indian Penal Code, regardless of the divergent views expressed by various High Courts on whether it creates a distinct offence, undeniably creates a separate head of criminal liability that has become known as “constructive liability,” a term that does not appear in the statute itself. Accordingly, the Court held that a person’s direct individual liability can be imposed only when a specific charge is framed that refers to the particular offence allegedly committed by that person. Such a situation does not fall within the ambit of sections 236 and 237 of the Code of Criminal Procedure, which deal with offences against the public order. The Court emphasized that the foundation of a conviction and a subsequent sentence rests upon the precise framing of a distinct charge for each separate element of criminal liability that constitutes an offence.

The Court noted a serious deficiency in the proceedings against the appellant because no specific charges under sections 307 and 302 of the Indian Penal Code were framed against him, even though he was sentenced to transportation for life under section 307 and to death under section 302. The Court then considered whether this omission had prejudiced the appellant’s trial. It was indisputable that the first information report lodged by the complainant, identified as P.W. 1, on 5 January 1953 expressly alleged that the appellant, armed with a pistol, fired at both Bisheshwar, identified as P.W. 2, and the deceased, Surajdin. The same allegation was reiterated in a private complaint filed by the same complainant in May 1953 directly before the Magistrate. Moreover, the prosecution’s evidence, both at the committal stage and at the sessions trial, supported this allegation.

Nevertheless, the Court observed that, aside from the lack of any individual charge against the appellant for those particular offences, the charges that were framed against him and the other accused concerning the injuries inflicted on P.W. 2 and the deceased Surajdin were vague regarding who actually performed the acts. The charge sheet, after identifying the persons alleged to constitute the unlawful assembly, read as follows: “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.”

The charge against the appellant included the following wording: “/ 149 of the Indian Penal Code, 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 Court observed that the portions of the charge dealing with the second and third heads were unusually vague. This vagueness, the Court noted, suggested a non-committal stance on the part of the Public Prosecutor and the trial Court, which under section 226 of the Code of Criminal Procedure bears the ultimate responsibility for framing charges. Because the charge did not specify who actually fired the pistol, no accused could be compelled to focus his defence on whether he or another person was the shooter responsible for the gun-shot injuries. The Court was informed that during the Sessions trial the appellant was specifically questioned under section 342 of the Code of Criminal Procedure about whether he had fired at P.W. 2 and the deceased Surajdin, and that the appellant denied having done so. However, the Court held that this line of questioning did not eliminate any prejudice that might arise from the vague wording of the charge at the Sessions trial concerning the identity of the pistol-fire author. The Court explained that, as a matter of practice, an accused in a Sessions trial does not have a right to be cross-examined after being questioned under section 342. It was suggested that because the same question had also been posed by the committing Magistrate under section 342, the accused had ample notice of the issue before the Sessions trial began. The Court rejected the proposition that such notice removed the possibility of prejudice. Moreover, the Court observed that despite the earlier questioning, the Magistrate’s Court had framed the charges with the same ambiguous language and that the Sessions Court had allowed those charges to proceed without any amendment. This, the Court said, was likely to be misleading. The appellant could reasonably have relied on the lack of amendment as an indication that he was not required to defend himself on the specific allegation that he was the person who fired the pistol. Given that the case involved sentences of life transportation and death, and that the trial Court had distinguished the appellant from the other accused by attributing the pistol-fire act to him alone, the Court concluded that it was difficult to assert that the accused had not suffered prejudice due to the continued vagueness of the charge.

It was observed that the trial court had failed to frame specific charges against the appellant under sections 307 and 302 of the Indian Penal Code. The medical testimony recorded that both PW 2 and the deceased Surajdin sustained gun-shot wounds. The doctor who examined the victims stated that the wounds could have been caused by a country-type pistol, which the prosecution alleged was in the appellant’s hand at the time of the incident. The defence counsel objected to the reliance on the doctor’s opinion, arguing that the medical officer lacked the expertise to determine the weapon involved and that, if the prosecution wished to base its case on the nature of the firearm, it should have called an expert in arms for testimony. Whether this objection was valid or not, the Court noted that if the appellant were to be held directly responsible for inflicting the gun-shot injuries identified by the medical officer, he would have been entitled to challenge that conclusion either through cross-examination of the doctor or by presenting his own positive defence concerning the type of weapon that caused the injuries. Considering all the circumstances, the Court concluded that the omission of explicit charges under sections 307 and 302 had caused material prejudice to the appellant. Accordingly, the convictions and sentences imposed on the appellant under those two provisions were set aside. The Court then turned to the question of whether a fresh trial should be ordered for the offences, indicating that it had given comprehensive consideration to the entire evidentiary record and the material on file.

The case disclosed additional noteworthy facts. At the same time that the first information report was lodged by PW 1, another report – identified as Exhibit P-16 – was filed by a person named Ram Pal at the same police station, almost simultaneously. The second report was recorded at 12 : 15 a.m., whereas the first report had been entered at 12 : 10 a.m. The content of Exhibit P-16 alleged that the present prosecution witnesses were the aggressors and that the incident arose from an attempt by those witnesses to assault Ram Pal in retaliation for his testimony in the committal proceedings of a concurrent rioting case, with the intention of preventing him from testifying in the Sessions Court. The complaint specifically identified Ram Bhawan, who is PW 4 in the present case, as the individual who possessed a pistol and discharged it. Notably, the report did not mention any injuries caused by pistol fire at the time of the incident. Although no proof was offered to substantiate the allegations contained in that report, the order of commitment suggested that a cross-case against some of the prosecution witnesses was pending as of the committal date. The police constable Mohair, who received both complaints – the one from Bhurey Lal and the one from Ram Pal – testified that when the counter-complaint (Exhibit P-16) was filed, the appellant Suraj Pal was present with Ram Pal. This presence could be interpreted as the conduct of an innocent person. The Court also observed that the police had failed to file any charge-sheet in the present case against any individual for the specific offence of murder, a circumstance that, while not conclusively proving any allegation, was nevertheless of significance in assessing the procedural fairness of the trial.

In this case, the Court observed that the report identified as Ex. P-16 contained no proof of any of the allegations it made. Nonetheless, the order of commitment that forms part of the present printed record shows that, as of the date of committal, a cross-case was pending against some of the present prosecution witnesses concerning the same incident. The police constable identified as Mohair, who was stationed at the police post where the counter-complaint Ex. P-16 was lodged, testified that when Ram Pal filed that complaint, the present appellant Suraj Pal accompanied Ram Pal, the complainant. The Court noted that such accompaniment might be explained as conduct of an innocent person. It was also significant that the police did not file any charge-sheet in the present matter for the murder offence punishable under section 302 of the Indian Penal Code. The charge-sheet that was filed limited the charges to section 307 of the Indian Penal Code and did not specify which member of the unlawful assembly had discharged the pistol. The charge-sheet dated 22 February 1953, reproduced in the record, contained a statement that “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 Court further examined the testimony of several prosecution witnesses, which indicated that more than one firearm may have been used during the incident. For example, Bisheshwar, identified as PW 2, stated that he heard three or four guns being fired outside together with a noise. Ram Bhawan, PW 4, recounted that four persons threw lumps of earth from a well at the accused, after which the accused retired and fired their gun twice, and that subsequently a gun was fired from the door of Mahadeo as the accused departed, followed by two or three further shots from that door. Gaya Prasad, PW 5, described that two or three guns were later fired from the door of Mahadeo Pandit, that the guns were launched from the lane, and that they were aimed at the door of Ram Saran, causing injury. Although these witnesses appear to attribute the injuries central to this case to the appellant Suraj Pal, the Court noted that their statements, particularly under cross-examination, suggest the possible presence of other persons within the unlawful assembly who were also armed and may have discharged their weapons. The Court therefore recognized that, besides the use of pistols, other firearms might have been employed during the incident.

In this case the evidence showed that a fight occurred between the two opposing groups, and that members on the accused side, specifically Lal Pratap and Chedi Lal, sustained injuries for which injury certificates are recorded as Exhibits D-1 and D-2. The prosecution witnesses themselves acknowledged that the incident involved mutual combat, including the throwing of brickbats by persons supporting the complainant against those identified as rioters. Additionally, a counter-case has been lodged against some of the prosecution witnesses relating to the same episode. Given these circumstances, any further trial would likely rely on evidence that is doubtful and unreliable because of the considerable lapse of time since the occurrence. The High Court, in its judgment, already concluded that the evidence presented in the present proceedings could not be accepted at face value. The learned judges examined this aspect in detail and articulated their reasoning as follows: they recognized that the arguments advanced by the appellants’ counsel contained substantial merit, and they noted that the crucial question was to determine which specific accused could be proved guilty and what standard should be applied for that determination. Because the prosecution evidence was deemed biased and interested, the judges held that only those accused who were assigned a definite role by the prosecution witnesses, or whose presence could be corroborated by other circumstantial material, should be considered proven to have participated. Moreover, the judges stressed that the prosecution’s case regarding the manner in which the incident unfolded would not be accepted unless it received corroboration from independent circumstantial factors or from logical probabilities. Applying these standards, the High Court rejected the testimony of prosecution witnesses that implicated ten other accused persons, leading to their acquittal. When the same standards are applied to the present appellant, there is no sufficient justification to deem the prosecution’s evidence reliable, and consequently the appellant should also benefit from the presumption of doubt. It is also notable that the investigating officer, identified as PW 14, testified that during the investigation the prosecuting authorities believed the murder should be attributed to the prosecution witness Ram Bhawan (PW 4) rather than to the appellant, and that they considered the evidence against Ram Bhawan insufficient to justify a trial for murder. This observation, while not bearing on the legal issues, underscores the weakness of the prosecution’s case against the appellant.

In this matter, the Court observed that the evidence presented against Ram Bhawan did not reach the threshold required to commit him to trial for the murder. The Court noted that the view expressed by the prosecuting authorities in this regard was irrelevant to the present proceedings and, consequently, should not have been entered into the record. Nevertheless, when the question of whether a fresh trial should be ordered was considered, the Court stated that it could not ignore the circumstances that had been placed on record. Having examined those circumstances, the Court concluded that the interests of justice did not compel the ordering of any retrial. Accordingly, the Court directed that no retrial be ordered. As a result, the Court set aside the appellant’s convictions under sections 307 and 302 of the Indian Penal Code together with the sentences that had been awarded on those counts. However, the Court affirmed the conviction under section 148 of the Indian Penal Code and maintained the sentence of two years and six months imposed for that offence. Consequently, the appeal was allowed in part to the extent specified, and the order of partial allowance was pronounced. Thus, the proceedings concerning the charges under sections 307 and 302 were concluded by the Court’s order.