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SUPREME COURT OF INDIA
29th January, 1954
BHAGWATI, JAGANNADHA DAS AND VENKATARAMA AYYAR, JJ.
Karnail Singh and another; Appellant
Versus
State of Punjab.
Criminal Appeal No. 64 of 1953.
Advocates appeared
Shri Jai Gopal Senior Advocate, (Shri R. L. Kohli, Advocate, with him), instructed by Shri Naunit Lal, Agent, for Appellants; Shri Porus A. Mehta, Advocate, instructed by Shri R. H. Dhebar, Agent, for the State.
Held: "The next question is whether the conviction of the appellant under S. 302 read with S. 34 when they had been charged only under S.302 read with S. 149 was illegal. The contention of the appellants is that the scope of S. 149 is different from that of S. 34, that while what S.149 requires is proof of a common object, it would be necessary under S 34 to establish a common intention and that therefore when the charge against the accused is under S. 149, it cannot be converted in appeal into One under S. 34 .. ; ... It is true that there is substantial difference between ~the two sections but they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under S. 149 overlaps the ground covered by S. 34. If the common object which is the subject-matter of the charge under S. 149 does not necessarily involve a common intention, then the substitution of S. 34 for S. 149 might result in prejudice to the accused and ought not therefore to be permitted. But if the facts to he proved and the evidence to be adduced with reference to the charge under S. 149 would be the same if the charge were under S. 34. then the failure to charge the accused under S. 34 could not result in any prejudice and in such cases the substitution of S. 34 for S. 149 must be held to be a formal matter. .
"Examining the record from this point of view, the findings are-that both the appellants who had longstanding enmity with Gurbaksh Singh Got on the roof of the house and set fire to it, with the deceased and Mst. Bholan couped up within. If it was their object under S.149 to bum the house and cause the death of Gurbaksh Singh, that was also their intention under S.34. On the facts of this case there can be no difference between the object and the intention with which the offences were committed. Our attention was also drawn to the wording of the charge which while mentioning S. 149 also sets out that in prosecution of the common objects the accused intentionally set fire to the house and murdered Gurbaksh Singh and Mst. Bholan. We are satisfied that the substitution of S. 34 in the place of S. 149 in the charge by the court below has resulted in no prejudice to the appellant and it is there fore not open to objection. ("per Venkatarama Ayyar J.) - Section 342-Use of statement under.
Held: With reference to the statement of the accused under S. 342 Cr. P.C. it is true that if it is sought to be used as an admission it must be read as a whole; but where it consists of distinct and separate matters, there is no reason why can admission contained in one matter should not be relied on without reference to the statements relating to other matters. - Section 367-Appreciation of evidence-Witness related to complainant-Nature of corroboration required.
Held: When a witness is a relation of the complainant, the corroboration that is required is not what would be necessary to support the evidence of an approver but what would be sufficient to lend assurance to the evidence before them, and satisfy them that the particular persons were really concerned in the murder of the deceased."1
Judgment
VENKATARAMA AYYAR, J. : This is an appeal by special leave by Karnail Singh and Malkiat Singh against the judgment of the High Court of Punjab confirming their conviction by the Additional Sessions Judge, of Ferozepore under section 302, I.P.C. and the sentence of death passed on them.
2. The facts as found by the courts below are as follows: There had been longstanding enmity between the appellants and their party on the one hand and the deceased Gurbaksh Singh and his party on the other, resulting in a number of crimes, and proceedings in court. On the 27th of January 1952, at about sunset time, Gurbaksh Singh was sitting inside his house on the sabath and his sister Mst. Bholan was in the kitchen. Then the appellants and their men came to the place armed with rifles, got on the roof of the house of Gurbaksh Singh and challenged him to come out. Gurubaksh Singh and Mst. Bholan went into the kotha and bolted the door from inside. Then the appellants and their men made holes in the roof with spades, ignited inflammable materials, such as dry twigs, and threw them inside the kotha through the holes and set fire to the buildings. Both Gurbaksh Singh and Mst. Bholan were caught inside and burnt to death. A brother of Gurbaksh Singh, called Dev, who had been at that time away, was, according to the prosecution, seized when he subsequently turned up, thrown into the flames and was also burnt to death.
Meantime one Gurnam Singh, P. W. 13, a cousin of Gurbaksh Singh and his neighbour, managed to slip out of the village and reported the occurrence at the police station at Nihal Singhwala, a place eight miles away (Vide Ex. PQ). It was then 10-30 P.M. On receipt of this information, the police sub-inspector, P. W. 25, went to the village with a posse of constables and with Gurnam Singh. He found the house mostly burnt and recovered therefrom the charred remains of three dead bodies and they were identified as those of Gurbaksh, Dev and Mst. Bholan. The appellant Karnail Singh was actually seen at that place and arrested on the spot. Malkiat Singh who had been mentioned in Ex. PQ as one of the participants was found in his house with gunshot wounds and was also arrested.
Eventually eight persons, including the appellants were charged under S. 148, I.P.C. for forming an unlawful assembly with the object of burning the house of Gurbaksh Singh and murdering him, Dev and Mst. Bholan, and under S. 302 read with S. 149 for their murder. The Additional Sessions Judge. Ferozepore, held that the case had not been established beyond doubt as against two of the accused and he accordingly acquitted them. He convicted the six others including the appellants under S. 302 read with S. 149 and sentended them to death. On appeal, the learned Judges of the Punjab High Court held that
"although there can be no doubt whatever that the occurrence took place more or less on the lines described by the prosecution witnesses, and the primary object of the culprits must have been to murder Gurbaksh Singh, deceased, in consequence of the bitter enmity between him and the main body of the accused"
and that "although it may very well be true that all the six appellants took part in this occurrence", the evidence against the four accused other than the appellants was insufficient to sustain their conviction, as it consisted of the testimony of persons who were at a distance of 40 to 50 ft. from the scene of occurrence and who claimed to identify the particular accused only by their voice. They were accordingly acquitted. Then dealing with the case against the two appellants they observed that as against them, there was evidence of the two eye-witnesses, Gurnam Singh (P. W. 13) and Maghar Singh (P. W. 14), that Maghar Singh was not a reliable witness, that nothing could be urged against the evidence of Gurnam Singh, that even so it would be unsafe to base a conviction on his evidence alone, but that the presence of Karnail Singh at the spot and the existence of wo
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