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SUPREME COURT OF INDIA
25th January 1955
S.R. DAS, BHAGWATI AND IMAM JJ.
Nanak Chand Appellant
Versus
State of Punjab Respondent.
Criminal Appeal No. 132 of 1954.
Advocates appeared
Mr. J. G. Sethi, Sr. Advocate, (Mr. Naunit Lal, Advocate, with him), for Appellant; Messrs Gopal Singh and P. G. Gokhale, Advocates for Respondent.
Held: Section 149 of I.P.C. creates a specific offence. The section postulates that an offence is committed by a member of an unlawful assembly in prosecution of the common object of that assembly or such as a member of the assembly knew to be likely to be committed in prosecution of that object and declares that in such circumstances every person, who was a member of the same assembly at the time of the commission of the offence, was guilty of that offence. Under this section a person who is a member of an unlawful assembly is made guilty of the offence committed by another member of the same assembly, in the circumstances mentioned in the section, although he had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly. Without the provisions of this section a member of an unlawful assembly could not have been made liable for the offence committed not by him but by another member of that assembly. Therefore when the accused are acquitted of riot and the charge for being members of an unlawful assembly fails, there can be no conviction of any one of them for an offence which he had not himself committed.
(2) Section 34 does not create any specific offence. There is a clear distinction between the provisions of Ss. 34 and 149, I.P.C. The principal element in S. 34, I.P.C. is the common intention to commit a. crime. In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime. In such a situation S. 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had -been done by him alone. There is no question of common intention in S. 149, LP.C. An offence may be committed by a member of an unlawful assembly and the other members will be liable for the offence although there was no common intention between that person and other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled. Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as that members of the assembly knew to be likely to be committed in prosecution of the common object every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual commission of that offence.
(3) Section 149 creates an offence but the punishment must depend on the offence of which the offender is by that section made guilty. Therefore the appropriate punishment section must be read with it. It was neither desirable nor possible to prescribe one uniform punishment for all cases which may fall within it. The finding that all the member of an unlawful assembly are guilty of the offence committed by one or them in the prosecution of the common object at once subjects all the members to the punishment prescribed for that offence and the relative sentence. - Precedents-"Obiter" observations.
Held: "It was argued, however, that these observations of Lord.
Sumner were obiter dicta. Assuming though not conceding that that may be so, the observations of a judge of such eminence must carry weight particularly if the observations are in keeping with the provisions of the Indian Penal Code. It is, however, to be remembered that the observations of Lord Sumner did directly arise on the argument made before the Privy Council, reviewing as a whole the provisions of Ss. 34, 114 and 149 I.P.C." (per lmdm J.). - Sections 233, 236, 237, 535, 537-Accused charged under S. 302 read with S.149 I.P.C.--Cannot be convicted under S. 302 when acquitted of charge under S. 302 read with S. 149-If defect can be cured.
No doubt of facts and of offence if allegations proved-Ss. 236, 237, Cr. P.C. do not apply.
Held: (1) A person charged with an offence read with S. 149I.P.C. cannot be convicted of the substantive offence without a specific charge being framed as required by S. 233, Cr. P.C.
(2) It has been urged that under the provisions of S. 236 and S. 237, Cr. P.C. a person could• be convicted of an offence which he is shown to have committed although he was not charged with it. Section 237, Cr. P.C. is entirely dependent on the provisions of S. 236 of that code. The provisions of S. 236 can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can be framed. In these circumstances if there had been an omission to frame a charge, then under S. 237 a conviction could be arrived at on the evidence although no charge had been framed. In the present case there is no doubt about the facts and if the allegations against the appellant that he had caused the injuries to the deceased with taka was established by evidence, then there could be no doubt that the offence of murder had been committed. There was no room for the application of S. 236, Cr. P.C.
(3) In the present case there was an illegality and not an irregularity curable by the provisions of Ss. 535 and 537, Cr. P.C. The appellant was misled in his defence by the absence of a charge under S. 302, LP.C. By framing a charge under S. 302, read with S. 149 I.P.C. against the appellant, the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under section 302 I.P.C. was to convict him of an offence with which he had not been charged. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution case.2
Judgement
IMAM J.: This appeal by Nanak Chand comes by special leave against the judgment of the Punjub (1) High Court. The appellant was convicted by the High Court under S. 302, I. P. C. and the sentence of death passed on him by the Additional Sessions Judge of Jullundur was confirmed.
2. On the facts alleged by the prosecution there can be no doubt that Sadhu Ram was killed on 5-11-1953, at about 6-45 P.M. at the shop of Vas Dev P. W. 2. It is alleged that the appellant along with others assaulted Sadhu Ram. The appellant was armed with a takwa. Numerous injuries were found on the person of Sadhu Ram.
According to the doctor, who held the postmortem examination injuries 1, 3 & 4 were due to a heavy sharp edged weapon and could be caused by a takwa. It was denied by the prosecution that the deceased was assaulted by any other person with a takwa. According to the Medical evidence, injuries 1, 3 & 4 individually, as well as collectively, were enough to cause death in the ordinary course of nature.
3. In the Court of Sessions the appellant along with others was charged under S. 148 and S. 302, read with S. 149, I. P. C. The Additional Sessions Judge, however, held that the charge of rioting was not proved. He accordingly found the appellant and three others guilty under S. 302, read with S. 34, I. P. C. He acquitted the other three accused.
There was an appeal by three convicted persons to the High Court and the High Court convicted the appellant alone under S. 302, I. P. C., confirming the sentence of death but altered the conviction of the other accused from S. 302/34 to S. 323, I.P.C. It held that the provisions of S. 34, I. P. C. did not apply.
4. On behalf of the appellant questions of law and questions of fact were urged. It will be unnecessary to deal with the questions of fact if the argument on points of law is accepted.
5. The principal question of law to be considered is as to whether the appellant could legally be convicted for murder and sentenced under S. 302, I. P. C. when he was not charged with that offence. It was urged that as the appellant had been acquitted of the charge of rioting and the offence under S. 302/149, I. P. C., The could not be convicted for the substantive offence of murder under S. 302, I. P. C., without a charge having been framed against him under that section. Reliance has been placed on the provisions of the Code of Criminal Procedure relating to the framing of charges, the observations of the Privy Council in - Barendra Kumar Ghosh v. Emperor , AlR 1925 PC 1 (A) and certain decisions or me Calcutta High Court to which reference will be made later on.
It was urged that for every distinct offence of which a person is accused, there shall be a separate charge and every such charge shall be tried separately except in cases mentioned under Ss. 234, 235, 236, 237 and 239, Cr. P. C. Section 149, I. P. C. creates a specific offence and it is a separate offence from the offence of murder punishable under S. 302, I. P. C The provisions of Ss. 236, 237 and 238, Cr. P. C. did not apply to the facts and circumstances of the present case.
On behalf of the prosecution, however, it was urged that S.149 did not create any offence at all and therefore no separate charge was obligatory under S. 233, Cr. P. C. and that in any event the provisions of Ss. 236 and 237, Cr. P.C. did apply and the appellant could have been convicted and sentenced under S. 302, I. P. C., although no charge for the substantive offence of murder had been framed against him.
6. It is necessary, therefore, to examine the provisions of S. 149, I. P. C. and consider as to whether this section creates a specific offence. Section 149, I. P. C. is to be found in Chap. 8 of that Code which deals with offences against the public tranquillity.
Section 149, I. P. C. reads:-
"If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be lik
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