Mohan Singh vs State Of Punjab

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

Court: supreme-court

Case Number: Not extracted

Decision Date: 14 March, 1962

Coram: B.P. Sinha, K.N. Wanchoo, N. Rajagopala Ayyangar, P.B. Gajendragadkar

In this case, the Supreme Court of India heard an appeal by special leave that arose from a criminal proceeding in which the accused Mohan Singh and Jagir Singh, together with three other persons, were charged with offences under sections 148 and 302 read with section 149, as well as under section 323 read with section 149 of the Indian Penal Code. The three additional persons named in the charge were Dalip Singh and two individuals identified as Piara Singh, the sons of Ujagar Singh and Bahadur Singh respectively. Among the five accused, Dalip Singh also faced a separate charge under section 302. The trial was conducted before the Second Additional Sessions Judge at Ferozepore. That judge concluded that the evidence against the two Piara Singhs did not satisfy the standard of proof beyond reasonable doubt, and consequently he acquitted them on the basis of the benefit of doubt. The judge convicted Dalip Singh under sections 302 and 147, and convicted the two appellants under section 302 read with sections 149 and 147. For the principal offence of murder, each of the convicted persons received a sentence of life imprisonment, and for the lesser offence under section 147 each was sentenced to six months of rigorous imprisonment, with the two sentences ordered to run concurrently. The three convicted individuals appealed this conviction and sentence before the Punjab High Court. The High Court accepted the findings of the trial judge and affirmed both the convictions and the sentences. Following that affirmation, the three petitioners sought special leave to appeal to this Court. The application for special leave filed by Dalip Singh was rejected, whereas the applications filed by the two appellants were permitted, thereby bringing the two appellants before this Court. On their behalf, counsel Raghubir Singh contended that the conviction of the appellants under section 302 in conjunction with section 149 could not stand, because the acquittal of the two Piara Singhs meant that the provisions of section 149 were inapplicable to the appellants.

Before addressing the merits of the appellants’ contention, the Court set out the material facts that gave rise to the prosecution. The incident in question occurred on 9 May 1959 at the village of Malsian. According to the prosecution, on that day the five persons named in the charge were members of an unlawful assembly that pursued a common object. The prosecution alleged that, in furtherance of that common object, the assembly engaged in rioting and that the accused were armed with deadly weapons at the time. It was further alleged that, acting on the common object of the unlawful assembly, a person named Gurdip Singh was murdered, and that an individual named Harnam Singh sustained injuries. These allegations formed the foundation of the charge under section 148 of the Indian Penal Code. The second charge asserted that Dalip Singh, one of the accused, inflicted a fatal head injury on Gurdip Singh while pursuing the common object of the unlawful assembly, thereby rendering all members of the assembly liable under section 302 in conjunction with section 149 for the murder of Gurdip Singh. In addition, Dalip Singh was separately charged under section 302 without reference to section 149. The prosecution also framed an additional charge under section 323 in conjunction with section 149 for the injury caused to Harnam Singh. The present appeal was confined to the conviction of the appellants under section 302 read with section 149.

The prosecution alleged that Harnam Singh had suffered injuries, and it was on this allegation that an offence under section 148 of the Indian Penal Code was framed. The second allegation stated that Dalip Singh, who was one of the accused, had inflicted a fatal head injury on Gurdip Singh while acting in furtherance of the common object of an unlawful assembly. Because of that act, the prosecution held that every member of the assembly was liable for murder under sections 302 and 149 of the Indian Penal Code. In addition to the charge based on the joint liability provision, Dalip Singh was separately charged with murder under section 302, without referring to section 149. The substance of that charge rested on the claim that Gurdip Singh was killed while pursuing the common object of the unlawful assembly. For the injuries inflicted on Harnam Singh, an additional charge was framed under sections 323 and 149. The appeal before this Court concerned only the conviction of the accused under sections 302 and 149, and the Court therefore focused its consideration on that particular conviction.

The records show that the accused identified as Mohan Singh and Jagir Singh were related as uncle and nephew; Jagir Singh was the son of Dalip Singh, who was Mohan Singh’s brother. A third brother, Tara Singh, had been married to Tej Kaur, the daughter of Gurdip Singh, who later became the victim of the fatal assault. Tara Singh had been killed during the communal disturbances that followed the Partition of India in 1947. As a result of those disturbances, the family migrated from their former residence in West Pakistan to East Punjab, where they were eventually allotted land in the village of Malsian. After the death of her husband, Tej Kaur took up residence with her father, Gurdip Singh, in the village of Ghandyala. Because Tej Kaur had left her husband’s village, Dalip Singh and Mohan Singh were able to obtain possession of the share of land that had belonged to her. When the holdings in Malsian were later consolidated, Tej Kaur secured a separate parcel of land representing the interest of her deceased husband, Tara Singh. Subsequently, Mohan Singh and Dalip Singh entered into possession of that parcel after executing a document known as a “pattanama” in favor of Tej Kaur. Having taken possession in that manner, they failed to pay Tej Kaur her regular share of the produce, and consequently the amounts due from them accrued as arrears. In order to recover those arrears and to obtain an eviction of Mohan Singh and Dalip Singh from the land, Tej Kaur was forced to appoint her father, Gurdip Singh, as her attorney. When the attorney filed eviction proceedings, Mohan Singh and Dalip Singh settled the arrears, yet Tej Kaur nevertheless succeeded in obtaining an eviction order. Mohan Singh and Dalip Singh appealed that order, but the appeal was dismissed and the eviction order was upheld. The dismissal of the appeal then gave rise to an application by Gurdip Singh seeking further relief.

The application to obtain execution of the eviction order resulted in the issuance of warrants for possession. Acting to protect his daughter’s interest, Gurdip Singh was later killed on 10 May 1959 by the appellants and their companions. After receiving the warrants, Gurdip Singh traveled to the village of Behak Gujran to meet his cousin Harnam Singh and requested his assistance, to which Harnam Singh consented. On 9 May 1959 the two men proceeded to Zira and asked the Patwari and the Girdawar to go to the disputed spot and deliver possession of Tej Kaur’s land to Gurdip Singh. The Patwari replied that the Qanungo was not in station and could be seen only in the evening. While waiting in the court compound, Dara Singh, the brother of Gurdip Singh’s wife, approached them; he was also invited to join the party and he agreed. Following the Patwari’s suggestion, the three men went later that evening to meet the Qanungo. After meeting him, they all set out for the fields, which lay about a mile from the village habitation, in order to take formal delivery of possession. As they neared the fields they observed the appellant Mohan Singh grazing cattle nearby. The Chowkidar, who had accompanied the party, informed Mohan Singh that they had arrived to hand over possession to Gurdip Singh. Mohan Singh then departed, claiming he was hungry and could not wait. The Qanungo and the Patwari proceeded to deliver possession of the disputed land to Gurdip Singh, and the delivery was publicly proclaimed in the village. Because a formal report of the delivery had not yet been prepared, the party began their return to the village. While they were about two “squares” away, the appellants and their companions emerged from a grove of khajoor trees, each armed with a lathi. On sighting Gurdip Singh and Harnam Singh, the attackers attempted to flee, but were pursued and surrounded by the assailants. Dalip Singh struck Gurdip Singh on the head with a dang, and Jagir Singh followed with a blow from his dang to Gurdip’s right arm, causing him to collapse unconscious. The appellants then assaulted Harnam Singh, delivering multiple blows to his entire body. An alarm was raised by the other members of the party, causing the assailants to fear the arrival of villagers; consequently they fled the scene. Gurdip Singh was placed in a bus and taken to the hospital at Zira, where medical treatment was administered but proved ineffective, and he succumbed to his injuries in the early hours of the following morning. Harnam Singh received medical care and subsequently recovered.

According to the record, the appellants together with their companions were tried before the learned Additional Sessions Judge at Ferozepore for the offences charged against them. All of the accused denied the allegations. The learned trial Judge examined the testimony of the principal eyewitnesses, namely Harnam Singh Phula, the chowkidar, and Sandhura Singh, the qanungo. He also considered the medical evidence relating to the injuries sustained by the victims. After evaluating the evidence in its entirety, the Judge concluded that the proof established the charge against the appellants under section 302 read with sections 149 and 147 beyond reasonable doubt. He further held that the charge against Dalip Singh under section 302 and section 147 was also satisfactorily proved.

With respect to the two persons named Piara Singh, the Judge reached a different conclusion. He found that the prosecution had not shown any motive for the commission of the offence by these two individuals. Their names appearing in the First Information Report did not, in the Judge’s view, establish their identity conclusively. On the basis of probability, it appeared highly unlikely that the two Piara Singhs, merely because of a remote relationship or friendship with the three other accused, could have participated in the assault on Gurdip Singh and Harnam Singh. The Judge considered the reasons offered by the prosecution for their participation to be weak, and consequently entertained a reasonable doubt about their involvement. In view of that doubt, he gave them the benefit of the doubt and acquitted them.

Nonetheless, the Judge observed that the large number of injuries inflicted on Harnam Singh and Gurdip Singh, combined with the complete absence of any injuries on the alleged assailants, indicated a highly uneven odds scenario. He emphasized that the assault must have involved more than three or four persons. Direct testimony from disinterested witnesses indicated the presence of five assailants. Accordingly, the Judge held that the charges of unlawful assembly and rioting were proved, even though two of the five named persons were acquitted. He explained that, although two of the five persons charged were cleared, there remained at least five persons implicated in the assault, thereby establishing the charge under section 147. On this basis, he convicted the appellants under sections 302 and 149.

When the appeal was presented before the High Court on behalf of the appellants, the findings of the trial Judge on the merits were challenged. The High Court examined the evidence independently and ultimately found that the trial Court’s view was correct. Regarding the charge under section 149, the only contention raised before the High Court was that the provision did not apply because the incident resulting in the death of Gurdip Singh was alleged to be a mere chance encounter. The High Court considered this argument and upheld the trial Court’s conclusion, finding no merit in the claim that the section was inapplicable.

When the appeal was heard before the High Court, the appellants argued that section 149 of the Indian Penal Code should not apply because the confrontation that resulted in the death of Gurdip Singh was, in their view, merely a chance encounter. The High Court examined this contentions and concluded that the prosecution evidence showed the assailants were lying in wait for Gurdip Singh; consequently, the assault was carried out by members of an unlawful assembly as alleged by the prosecution. The Court also noted that no counsel raised before it any argument that the acquittal of the two accused named Piara Singh should, by itself, render section 149 inapplicable to the remaining defendants. Subsequently, Mr. Raghubir Singh contended that the trial‑court’s finding of five assailants could not be justified if the alleged presence of the two Piara Singhs was ignored. He asserted that the charge expressly named five persons as assailants and that all the evidence throughout the trial referred only to those five individuals, with no reference to any other participants. This submission was not contested by the counsel appearing for the State. Accordingly, the Court proceeded to consider the merits of the appeal on the premise that both the charge and the evidence identified five persons as members of an unlawful assembly, two of whom had been acquitted, and that the critical question to be resolved was whether the acquittal of the two Piara Singhs left the prosecution free to rely upon section 149 against the remaining appellants.

The Court then turned to the precise legal requirements of section 149. That provision imposes vicarious or constructive liability on every member of an unlawful assembly when any member commits an offence in prosecution of the common object of the assembly, or commits an offence that the members knew was likely to be committed in furtherance of that object. A fundamental ingredient of section 149 is that the offence must be committed by a member of an unlawful assembly, and section 141 makes clear that an unlawful assembly exists only when five or more persons are assembled with a common unlawful purpose. Thus, the membership of the assembly must be at least five to satisfy the statutory condition. The appellants argued that, once the two Piara Singhs were acquitted, the assembly’s membership fell to three, thereby disqualifying the situation from fitting the definition under section 141 and consequently precluding the application of section 149. In the Court’s opinion, based on the facts of the present case, this argument must be upheld. The Court reiterated its earlier observation that the issue raised by the appellants needed to be addressed on the assumption that only five persons were named in the charge as constituting the unlawful assembly and that evidence during the trial was confined to those five individuals. Accordingly, the reduction of the alleged assembly to three persons after the acquittal of two named members meant that the statutory threshold for an unlawful assembly was not met, and section 149 could not be invoked against the appellants.

In the present case, the charge sheet identified five individuals as members of the alleged unlawful assembly, and the evidence presented during the trial was limited to those five persons. Consequently, when two of the five named individuals were acquitted, the composition of the assembly was reduced to three persons, which, under the statutory definition, could no longer be classified as an unlawful assembly. To determine whether section 149 of the Indian Penal Code could be invoked in such circumstances, it was necessary to consider the various categories of cases that the criminal courts encounter. The first and most straightforward category arises when the charge identifies five or more persons as constituting an unlawful assembly and the prosecution succeeds in proving the guilt of each of those individuals; in such a scenario, the application of section 149 is clear and undisputed. However, the law does not require that five or more persons be convicted before a charge under section 149 can be sustained. A second category includes situations where fewer than five persons are either charged or convicted under sections 302 or 149 because the prosecution's case alleges that those before the court, together with other individuals named in the charge, formed an unlawful assembly, even though some of the named persons may be unavailable for trial, for example because they have absconded. In these circumstances, the fact that fewer than five defendants are present before the court does not defeat the applicability of section 149, since both the charge and the evidence aim to show that the total number of participants, including those not present, exceeded five, thereby establishing an unlawful assembly. A similar logic applies when the prosecution asserts that the defendants before the court, in conjunction with unidentified and unnamed assailants, together constituted an unlawful assembly; if the evidence demonstrates that the known defendants and the unknown participants jointly formed an assembly of more than five persons, the court may convict the known defendants under section 149 despite the absence of identification or charge against the other participants. A third category concerns cases where the charge names five or more persons as members of an unlawful assembly, but both the charge and the evidence are confined solely to those named individuals, and two or more of them are acquitted, leaving fewer than five persons to stand trial. In such instances, section 149 cannot be invoked because the statutory requirement of a minimum of five persons in the assembly is not satisfied. Even in these situations, it remains possible that, although the charge names five or more persons as members of an unlawful assembly, the evidence may reveal that additional, unidentified persons were also part of the assembly.

The Court observed that even when a charge states that the accused formed an unlawful assembly, the evidence may reveal that the assembly also included other persons who were not identified or named. In such circumstances, the trial court, and even a higher court on appeal, may determine that the acquittal of some of the persons specifically named in the charge does not necessarily defeat the applicability of section 149. This is because, together with the two or three persons who may be convicted, there may have been additional members of the unlawful assembly whose identities remain unknown and therefore were not named in the charge. Accordingly, the acquittal of one or more of the named accused does not invalidate the charge under section 149, provided that the factual findings of the court show that the total number of persons who actually formed the unlawful assembly was five or more. The Court cautioned that in this latter category of situations the fact‑finder must proceed with great care, but it emphasized that no legal prohibition exists that would prevent the court from arriving at such a conclusion. The omission of un‑named and unidentified participants from the charge may raise a question of whether the accused could suffer prejudice because the charge does not expressly mention those additional persons. Nevertheless, after considering any possible prejudice, the Court held that there is no legal obstacle to a court of facts concluding that, even though the charge referred only to five or more persons, the unlawful assembly in reality comprised additional persons who were not named or identified. The Court concluded that this represents the correct legal position for the various categories of cases that arise when a charge under section 149 is framed. To illustrate the principle, the Court referred to three leading decisions, the first of which is Dalip Singh v. State of Punjab (1954) SCR 145. In that decision, the Court held that before section 149 can be invoked, the judge must be satisfied that at least five persons were present sharing the common object of the alleged unlawful assembly. The Court also clarified that this requirement does not mean that all five persons must be convicted in order to sustain a charge under section 149. If the judge is convinced, on the basis of the evidence, that five persons were unquestionably present and shared the common object, even though the precise identity of some of those persons may be uncertain, the convictions of the persons whose identity is established would be valid. In the Dalip Singh case, however, the Court found that the prosecution evidence did not satisfactorily establish that the assembly consisted of five or more persons, and therefore section 149 was held to be inapplicable. Thus, on the factual matrix relevant for applying section 149, the Dalip Singh case is similar to the present matter.

In the present appeal, the Court referred to the decision in Bharwad Mepa Dana v. State of Bombay, where the facts involved twelve persons named in the charge as having formed an unlawful assembly with the common object of murdering three individuals. At the trial before the Sessions Judge, seven of those named were acquitted, while five were convicted under Section 302 together with Section 149 and also under Section 302 together with Section 34. On further appeal, the High Court acquitted one of the five convicted persons but upheld the conviction and the sentence imposed on the remaining four. The order of conviction and sentence was subsequently challenged before this Court on several grounds, one of which claimed that Section 149 ceased to apply as soon as eight of the twelve persons originally named as members of the unlawful assembly were acquitted. In rejecting that contention, this Court noted that the High Court had recorded a finding that the unlawful assembly in question consisted of ten to thirteen persons, of whom only four had been positively identified while the identities of the others remained uncertain. The Supreme Court held that the High Court was expressly permitted to arrive at such a finding based on the evidence presented.

The challenge to that finding was articulated in two alternative arguments. The first argument asserted that the prosecution case must be limited to the charge framed against the accused, which specifically named twelve individuals as members of the unlawful assembly; consequently, the Court argued that once eight of those named persons were acquitted, Section 149 should become inapplicable. The second argument contended that the High Court, by concluding that the unlawful assembly comprised ten to thirteen persons, was in effect creating a new unlawful assembly, a step alleged to be impermissible in a criminal trial. This Court repelled both arguments, holding that no legal prohibition existed which prevented the High Court from concluding that, notwithstanding the acquittals, the evidence demonstrated the presence of more than five persons constituting the unlawful assembly. The Court clarified that the assembly about which the High Court made a finding was not a new assembly but the same assembly alleged by the prosecution; the distinction lay only in the fact that, while the charge alleged all members were known, the evidence showed that the identities of all members could not be established, although the number of participants was definitely five or more. Relying on that reasoning, this Court confirmed the conviction of the appellants under Section 302 together with Section 149, thereby illustrating that Section 149 may be applied even when two or more of the persons originally charged are acquitted. The same principle has been enunciated by

In the earlier decision of Kartar Singh v. State of Punjab, the Court explained that the provision concerning an unlawful assembly could not be applied when the number of alleged assailants was definite, all of them were specifically named, and the evidence showed that fewer than five persons actually participated in the incident. The Court also observed that if the charge sheet specifically identified certain individuals as members of an unlawful assembly, this identification tended to exclude the possibility that other, unmentioned persons were also part of that assembly, particularly when there was no reason to suspect that the witnesses who named the accused had erred in their identification. The counsel for the petitioner relied on this observation. However, the Court considered it unreasonable to interpret the statement as establishing an absolute rule that the prosecution could never introduce evidence of additional participants beyond those named in the charge. Rather, the observation suggested that when the charge names particular persons as comprising an unlawful assembly, the fact‑finders would be cautious before concluding that other persons were members of the same assembly. If, on the basis of the evidence, persons who were not named in the charge are shown to have been members of the unlawful assembly, the Court held that no legal prohibition existed against accepting that conclusion. This situation may arise when some members of the assembly are not identified by the witnesses. The Court further noted that the judgment in Kartar Singh itself rejected the appellants’ contention that their convictions under sections 302 and 307, read with section 149, were invalid. Consequently, the Court found no inconsistency between the present observations and the earlier rulings. In the facts of the present case, the appellants were therefore entitled to argue that section 149 could not be applied against them.

The discussion then proceeded to the question of whether the appellants could be convicted under section 302 read with section 34. Like section 149, section 34 deals with constructive criminal liability. Section 34 provides that when a criminal act is committed by several persons acting together with a common intention, each participant is liable for the act as if he had performed it alone. The essential element of the liability created by section 34 is the existence of a common intention among the participants. When the common intention that animates the accused guides their conduct, the liability under section 34 attaches in the same manner as the liability created by section 149, though the two sections are based on different concepts—common intention versus common object.

Section 34 imposes constructive criminal liability on each person who shares a common intention with others, so that when that common intention results in the commission of the offence charged, every participant is deemed liable for the act performed by any one of them. The provision is analogous to the concept of unlawful assembly under section 149, in that both require a collective element: the former demands a combination of persons united by a common intention, while the latter requires a combination of persons sharing a common object. Although the two sections sometimes overlap and display similar features, the underlying intention under section 34 is distinct from the common object that defines an unlawful assembly. Common intention under section 34 signifies action‑in‑concert and necessarily entails a pre‑arranged plan, implying that the minds of the participants met prior to the act. Judicial pronouncements have shown that cases falling within section 34 involve some degree of participation by each accused; the individual acts of the participants may differ in character, yet they are all driven by the same common intention. It is now well‑settled that the common intention required by section 34 is not identical to a mere same or similar intention. As observed by the Privy Council in Mahbub Shah v. King Emperor ((1945) L.R. 72 I.A. 148), the expression “common intention” within the meaning of section 34 implies a pre‑arranged plan, and conviction under the section demands proof that the criminal act was performed in concert with that plan. Moreover, the inference of common intention must arise only when it is a necessary deduction from the surrounding circumstances.

The facts established in the present matter demonstrate that the appellants shared with Dalip Singh the motive that drove Dalip Singh to deliver the fatal blow to Gurdip Singh. The close relationship between the appellants and Dalip Singh leaves no doubt that they possessed this common motive to an equal degree. Evidence further shows that Dalip Singh and the two appellants were lying in wait for Gurdip Singh. When a party accompanying Gurdip Singh informed the appellant Mohan Singh that the Patwari and the Qanungo had arrived to hand over possession of land to Gurdip Singh, Mohan Singh pretended to be hungry and departed. He subsequently contacted Dalip Singh and Jagir Singh, and all three positioned themselves in concealment, awaiting Gurdip Singh, whom they knew would pass that way. The three assailants deliberately hidden themselves behind a grove of Khajoor trees and were armed with lathis. This conduct unequivocally indicates that they possessed a common intention to fatally assault Gurdip Singh, an intention that underlies liability under section 34.

In its reasoning, the Court examined why the accused were armed with lathis and why they had concealed themselves behind the Khajoor trees. The Court observed that when Gurdip Singh and Harnam Singh approached the spot where the appellants were lying in wait, all three attackers instantly rushed at Gurdip Singh and pursued him as he and Harnam Singh tried to run away. The Court said that such conduct plainly demonstrated the presence of a common intention among the participants. The Court further noted that after the chase the three assailants closed in on the two victims, and that Dalip Singh delivered the fatal blow to Gurdip Singh. In surrounding Gurdip Singh, the Court held that the two appellants undeniably took part in the operation and thereby assisted Dalip Singh. The Court added that, after the fatal assault on Gurdip Singh, the three perpetrators realized that villagers were likely to converge on the scene after an alarm had been raised, and consequently they all fled together. Based on these facts, the Court concluded that it was inescapable to find that the appellants and Dalip Singh acted with a common intention to kill Gurdip Singh, and that the homicide committed by Dalip Singh was carried out in furtherance of that common intention. Accordingly, the Court found no difficulty in holding that the appellants were guilty of the offence punishable under section 302 read with section 34 of the Indian Penal Code. The Court expressed confidence that, had the appellants argued before the High Court that section 149 was inapplicable, the High Court would have readily substituted the conviction under section 302 and section 149 with a conviction under section 302 read with section 34. Consequently, the Court altered the appellants’ conviction to one under section 302 read with section 34 of the Indian Penal Code. The Court clarified that this amendment did not affect the sentence, and that for the offence under section 302 read with section 34 the appellants were to be sentenced to life imprisonment. Finally, the Court set aside the conviction and sentence for the offence under section 147 and ordered the appellants to be acquitted of that particular charge.