Shambhu Nath Singh And Ors. vs State Of Bihar

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 30 October, 1959

Coram: P.B. Gajendragadkar, K. Subba Rao, J.C. Shah

In this case the Supreme Court of India rendered a judgment dated 30 October 1959 concerning Shambhu Nath Singh and others versus the State of Bihar. The bench comprised P B Gajendragadkar, K Subba Rao and J C Shah and the judgment was delivered by Justice Shah. The matter before the Court was an appeal by special leave from a conviction recorded by the Additional Judicial Commissioner of Chotanagpur at Daltonganj. Fourteen individuals had been tried for offences punishable under Sections 147, 148, 302 and 302 read with Section 149 of the Indian Penal Code, as well as Sections 19(E) and 19(F) of the Arms Act. The Additional Judicial Commissioner found nine of the fourteen accused guilty. The first accused, Shambhu Nath Singh, was convicted of murder under Section 302, of rioting armed with a deadly weapon under Section 148 in conjunction with Section 149, and of an offence under Section 19(F) of the Arms Act. He was sentenced to transportation for life for the murder charge, while no separate sentences were imposed for the other convictions. Accused numbers two, three and four were each convicted of offences under Section 326 read with Section 149 and Section 148 of the Indian Penal Code. Each of them received a sentence of rigorous imprisonment for six years for the Section 326 offence, and no separate sentence was imposed for the Section 148 rioting charge. Accused numbers five, six, seven, eight and fourteen were convicted of offences under Section 326 read with Section 149 and Section 147 of the Indian Penal Code. In addition the seventh accused was convicted under Section 19(E) of the Arms Act. The court sentenced the five accused to rigorous imprisonment for four years for the Section 326 offence and did not pass a separate sentence for the Section 147 offence. The seventh accused received an additional six-month rigorous imprisonment for the Arms Act violation. Accused numbers nine, ten, eleven, twelve and thirteen were acquitted of all charges. The convicted persons appealed against the conviction and sentence to the Patna High Court. The High Court affirmed the convictions, but modified the order relating to the seventh accused’s conviction under Section 19(E) of the Arms Act.

The prosecution case, in brief, concerned a plot identified as No 493 in Khata No 27 of the village Gulabjhari where a tenant named Baran Kahar cultivated the land. The tenancy originally existed under adh batai, but the rent had been converted to cash rent by an order of the Commutation Officer exercising powers under Section 61 of the Chotanagpur Tenancy Act. On 2 July 1954 at approximately four p.m. Baran Kahar and his sons Nanhu Kahar and Ramdeni Kahar were engaged in ploughing, leveling and sowing paddy. At that moment a crowd that included the fourteen accused arrived at the scene. The first accused, Shambhu Nath Singh, was armed with a gun, while the remaining accused carried weapons such as bhallas, garasas and lathis. The victims’ family members, Ramdeni Kahar and Mst Sukri, who were respectively the son and the wife of Baran Kahar, pleaded with the accused to refrain from assaulting Baran Kahar, but their appeals were ignored. Shambhu Nath Singh discharged several shots, inflicting injuries on Baran Kahar and causing his immediate death. Nanhu Kahar also sustained a gunshot wound that proved fatal, and both Ramdeni Kahar and Mst Sukri suffered injuries. After leaving the field Ramdeni Kahar reported the incident to the police station at Chhatarpur. The Sub-Inspector of Police lodged a complaint and began an investigation, leading to the arrest of the fourteen accused who were subsequently presented before the First Class Magistrate at Daltongunj.

On 2 July 1954, Baran Kahar and his sons, Nanhu Kahar and Ramdeni Kahar, were engaged in ploughing, levelling the land and sowing paddy in plot No. 493, Khata No. 27, village Gulabjhari. While they were working, a crowd that included the fourteen accused persons arrived at the site. The first accused, Shambhu Nath Singh, who was designated as accused No. 1, was armed with a firearm, and the remaining accused were carrying a variety of weapons such as bhallas, garasas and lathis. Observing the possibility of an assault, Ramdeni Kahar and Mst. Sukri—who were respectively the son and the wife of Baran Kahar—entreated the accused to refrain from attacking Baran Kahar. Their pleas were ignored. Shambhu Nath Singh then discharged several rounds of his gun, striking Baran Kahar and causing his instant death. Nanhu Kahar also suffered gun-shot injuries that proved fatal. In addition, both Ramdeni Kahar and Mst. Sukri sustained injuries. After the accused had departed from the field, Ramdeni Kahar reported the incident to the police station at Chhatarpur, describing the assault on Baran Kahar and Nanhu Kahar. The Sub-Inspector of Police recorded the offence and launched an investigation. During the course of that investigation, all fourteen accused were apprehended and produced before the First Class Magistrate at Daltongunj on a charge-sheet that listed offences under Sections 147, 148, 302 and 302 read with Section 149 of the Indian Penal Code, together with Sections 19(E) and 19(F) of the Arms Act. The magistrate committed the accused to the Court of Session for trial. At the trial, accused numbers 1 through 8 and number 14 were found guilty, while the remaining accused were acquitted. The learned Additional Judicial Commissioner observed that on the day of the incident Baran Kahar possessed the land where the rioting occurred, and that the convicted accused had formed an unlawful assembly with the common object of assaulting Baran Kahar. Because the members of the assembly were armed with diverse weapons, the Commissioner held that they must have foreseen the likelihood of causing grievous hurt while pursuing that common object. Accordingly, accused numbers 2 to 8 and 14 were held guilty of offences under Section 326 read with Section 149 of the Indian Penal Code for the consequences of the first accused’s gunfire resulting in the deaths of Baran Kahar and his son Nanhu Kahar. The first accused, Shambhu Nath Singh, was convicted under Section 302 of the Indian Penal Code, and, for reasons not readily clear, was also convicted under Section 302 read with Section 149. Finally, the court noted that, as a settled practice, it does not ordinarily re-examine evidence on criminal appeal unless the trial was compromised by a procedural illegality, a violation of natural-justice principles, or a gross miscarriage of justice.

In this case the Court examined the factual findings on which the judgments of the lower tribunals were based. The trial court had determined that on the day of the incident the disputed parcel of land was in the possession of Baran Kahar. It also held that the persons who were later convicted assembled themselves as an unlawful assembly with the purpose of forcibly dispossessing Baran Kahar and of committing an assault on him. These findings were derived from an evaluation of the evidence presented at trial and the Court noted that there was no indication that the trial had been undermined by any illegality, procedural irregularity, or breach of the principles of natural justice, nor was there any suggestion that the proceedings had resulted in a gross miscarriage of justice. The Court observed that the High Court had affirmed the conclusions of the trial court, and accordingly the present Court accepted those conclusions as well.

The remaining issue for determination concerned the propriety of sustaining the convictions of accused persons numbered two through eight and fourteen under Section 326 read with Section 149 of the Indian Penal Code, given that no individual had been found guilty of the substantive offence specified in Section 326. Counsel for the appellants argued that these accused had been acquitted of the offence under Section V read with Section 149 and that, because there was no evidence establishing that grievous hurt had been inflicted in prosecution of the proven common object by any member of the assembly, a conviction under Section 326 read with Section 149 could not be supported by law. The first accused, Shambhu Nath Singh, had been convicted of the offence under Section 302 read with Section 149, while the remaining accused had been convicted of the offence under Section 326 read with Section 149. Counsel for the appellants maintained that, in the absence of proof that any of the accused caused grievous hurt in furtherance of the common object, the trial court lacked the competence to record a conviction for the offence under Section 326 read with Section 149.

Section 149 of the Indian Penal Code declares the principle of vicarious liability that attaches to every member of an unlawful assembly for acts done in prosecution of the assembly’s common object or for offences that the members knew were likely to be committed in pursuit of that object. The provision operates such that when an unlawful assembly is formed with a shared objective to commit a particular offence, and when any member of that assembly carries out the offence in furtherance of that objective, all members of the assembly become liable for that offence, even though only some of them may have actually performed the act. Moreover, if a member of the unlawful assembly commits an offence that the other members knew was likely to be committed in the course of achieving the common object, each member who possessed that knowledge is also guilty of the offence committed.

In describing the effect of Section 149 of the Indian Penal Code, the Court explained that when an unlawful assembly pursues a common object, each member who possesses knowledge of the likely consequences of that pursuit becomes liable for the offence that is actually committed. However, the Court noted that members of an unlawful assembly may share a common purpose only up to a certain point, after which their individual objectives may diverge. Consequently, the knowledge each member has about what is likely to be done in furtherance of the common purpose can differ, depending both on the information each person controls and on how fully that person identifies with the shared purpose. Because of this variation, the operation of Section 149 may not be uniform for every participant in the same unlawful assembly. The Court cited Jahiruddin v. Queen Empress, ILR 22 Cal 306, to illustrate this principle.

The Court then held that a conviction under Section 326 together with Section 149 of the Indian Penal Code can be made against every member of an unlawful assembly, even if the principal act of murder was performed by only one of those members. The offence under Section 326, which relates to voluntarily causing grievous hurt, is a lesser offence when compared with murder. The language of Section 149 does not stop a court from convicting participants for this lesser offence merely because a more serious offence, such as murder, has also been committed. The accused counsel sought to rely on certain authorities to support a contrary view, and the Court agreed to address those authorities briefly.

First, the Court examined the case of Queen v. Sabid Ali, 20 Suth WR Cr 5 (FB). In that case, a group identified as Party A attacked Party B, who were occupying land, with the intention of forcibly removing them. One member of Party A fired a gun and killed a member of Party B. The dissenting judgment of Ainslie, J. concluded that, based on the evidence, members of Party A other than the shooter could not be convicted of murder under Section 149. Instead, their convictions were altered to rioting armed with a deadly weapon under Section 148 of the Indian Penal Code. The Court observed that the unlawful assembly in that case was formed to take possession of disputed land, and the evidence showed that the murder was not an act the assembly members knew was likely to be committed in pursuit of their objective. Accordingly, that authority does not aid the appellants.

Next, the Court referred to Ram Prasad Singh v. King Emperor, ILR 1 Pat 753 (AIR 1923 Pat 50). The headnote of that decision states that when the principal offender in a rioting case is convicted of an offence, the other participants cannot be held constructively guilty of a different offence. Specifically, if the principal offender was convicted under Section 302 for murder, the Court held that the others could not be convicted under Section 304 read with Section 149. This principle was later reiterated by Mr. Justice Coutts, who observed that there is no authority permitting the conviction of the principal offender for one offence while the remaining members of the unlawful assembly are convicted for another offence, and that the statutory language itself suggests a uniform approach to constructive liability under Section 149.

In the earlier authority it was observed that an individual who is a member of an unlawful assembly cannot be said to have constructively committed an offence that is different from the offence actually committed by the principal offender. Consequently, when the principal offender was convicted under Section 302 of the Indian Penal Code, the court held that the remaining participants could not be convicted under Section 304 read with Section 149. Justice Coutts, speaking for the court on page 757, explained that in the present matter Ram Prasad had been found guilty under Section 302. The learned Sessions Judge had concluded that the other appellants could not be held constructively guilty of the same murder offence, but had instead found them constructively guilty of offences under Section 304. Justice Coutts remarked that he could locate no authority that permitted the conviction of the principal offender for one offence while convicting the other members of the unlawful assembly for a different offence. He added that the language of Section 149 itself seemed clear: if a member of an unlawful assembly is to be held constructively liable, the liability must arise from the same offence for which the principal offender is convicted, and not from a distinct offence. The only circumstance in which the members would escape liability under Section 149 is when their conduct does not fall within the scope of that provision. The court expressed its inability to accept the view advanced by the learned Assistant Government Advocate and declined to follow the reasoning of the Sessions Judge.

The court then turned to the jurisprudence on the construction of Section 149. The statement of law in the case of Ram Prasad Singh (ILR 1 Pat 753: AIR 1923 Pat 50) was revisited in Bhagwat Singh v. Emperor (AIR 1936 Pat 481). In that decision the court held that, while interpreting Section 149, a member of an unlawful assembly need not necessarily be guilty of the same offence as the principal offender, nor of the exact offence that the member must have known to be likely to be committed. The Bhagwat Singh ruling therefore dissented from the position taken in Ram Prasad Singh. A later authority, Sidhu Gope v. Emperor (AIR 1946 Pat 84), affirmed that members of an unlawful assembly are not automatically guilty of the same offence as the principal offender; the appropriate charge depends on the facts and on what offence the members could reasonably have foreseen, with conviction for a lesser offence where that offence is minor. However, in the same volume, the decision in Ram Charan Rai v. Emperor (AIR 1946 Pat 242) expressed a preference for the view articulated in Ram Prasad Singh, supporting the notion that the offence for which the members are held must coincide with that of the principal offender. Finally, the court noted that Section 149 imposes vicarious liability on members of an unlawful assembly for offences committed in prosecution of the common object, or for offences that were known to be likely to be committed by the assembly.

In this case the Court declared that murder, by its very nature, is an aggravated form of the offence of grievous hurt. Accordingly, the Court could not accept the proposition that because the prosecution had not proved that any specific offender had caused grievous hurt to the victims, the convictions of accused numbers two through eight and number fourteen for the offence punishable under Section 326 in conjunction with Section 149 of the Indian Penal Code were illegal. The Court observed that the unlawful assembly had, as determined by the lower courts, a common object of causing grievous hurt, and that the death of the victim resulted from the act of one member of that assembly. Regarding the death, the Court found that the remaining members of the unlawful assembly were not liable for that particular consequence. Nevertheless, the Court held that the conviction of the accused for the offence of causing grievous hurt in furtherance of the common object of the unlawful assembly was sustainable. Consequently, the convictions of accused numbers two to eight and fourteen under Section 326 read with Section 149 of the Indian Penal Code were correctly recorded. On the basis of these findings, the Court concluded that the appeal was without merit and dismissed it.