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SUPREME COURT (From : Patna)
S.J. IMAM, K. SUBBA RAO, N. RAJAGOPALA AYYANGAR AND J. R. MUDHOLKAR, JJ.
Ram Bilas Singh and others - Appellants
v.
The State of Bihar - Respondent
Criminal Appeal No. 73 of 1961
Decided on: 29-1-1963
CRIMINAL LAW - UNLAWFUL ASSEMBLY - CONVICTION OF LESS THAN FIVE PERSONS - ACQUITTAL OF OTHER ALLEGED ASSOCIATES - EFFECT - VICARIOUS LIABILITY FOR ACTS OF ACQUITTED PERSONS - INTERPRETATION OF SECTION 149, INDIAN PENAL CODE.
Fact of the Case:
Appellants were convicted under Section 326 read with Section 149 of the Indian Penal Code (IPC) for assaulting Deva Singh, while the other two appellants were convicted under Sections 147 and 426 IPC for rioting and mischief. The High Court altered the conviction of the appellants under Section 304, Part II read with Section 149 IPC to Section 326 read with Section 149 IPC, but maintained the sentences and convictions under Sections 147 and 426 IPC.
Finding of the Court:
The court held that the High Court erred in convicting the appellants under Section 326 read with Section 149 IPC without setting aside the acquittal of the four alleged associates of the appellants. The court further held that an accused person cannot be held liable vicariously for the act of an acquitted person.
Issues: 1. Whether the High Court erred in convicting the appellants under Section 326 read with Section 149 IPC without setting aside the acquittal of the four alleged associates of the appellants? 2. Whether an accused person can be held liable vicariously for the act of an acquitted person?
Ratio Decidendi: 1. The court held that the High Court erred in convicting the appellants under Section 326 read with Section 149 IPC without setting aside the acquittal of the four alleged associates of the appellants. The court relied on the principle laid down in Plummer's case, (1902) 2 KB 339, which has been accepted by the Supreme Court in Topan Das's case, (1955) 2 SCR 881, that if several persons are indicted for a riot, and the jury acquit all but two, they must acquit those two also, unless it is charged in the indictment and proved, that they committed the riot together with some other person not tried upon that indictment. 2. The court held that an accused person cannot be held liable vicariously for the act of an acquitted person. The court relied on the decision in Harchanda v. Rex, ILR (1951) 2 All 62, where it was held that an accused person cannot be held constructively liable for the infliction of wounds by an acquitted person.
Final Decision: The court set aside the judgment of the High Court and remanded the case back to the High Court for a fresh decision.
JUDGEMENT
MUDHOLKAR, J. :- This is an appeal by special leave from a judgement of the High Court of Patna altering the conviction of the appellants under S. 304, Part II read with S. 149 of the Indian Penal Code into convictions under S. 326 read with S. 149, I.P.C. but maintaining the sentences and affirming the convictions under S. 147 and S. 426, I.P.C. as well as the sentences awarded in respect of those offences.
2. The prosecution case was that there was a dispute between Ram Bilas Singh of Shahpore and his two sons Ram Naresh Singh and Dinesh Singh on the one hand (appellants before us) and Deva Singh (P.W. 2) and his brothers on the other with respect to a Dochara in a village Dihara. On April 22, 1951, at about 9.00 a.m. while Deva Singh, along with his brother Laldeo Singh, the deceased and two other persons Dhunmun Singh (P.W. 4) and Dasain Hajam were sitting in the Dochara, the appellant No. 1 Ram Bilas Singh arrived there in a truck with a mob of 40 to 50 persons which included the other two appellants before us, besides four other persons who were acquitted by the trial court. Ram Bilas Singh is said to have fired from the gun which he was carrying which hit Laldeo Singh on the chest as a result of which he fell down but got up later. Thereupon Ramdeo Singh (acquitted by the trial, court) fired from his gun and the shot hit Laldeo Singh on the chest and he fell down again. After that, Ram Bilas Singh Gumasta of Dihara (acquitted by the trial court) fired a second shot from his gun hitting Laldeo Singh on the abdomen and killing him instantaneously. The appellant Ram Bilas Singh is further said to have fired two shots at Deva Singh hitting him on his right thigh. Appellants Ram Naresh Singh and Dinesh Singh are said to have assaulted Deva Singh with lathis as a result of which he fell down and thereafter the mob proceeded to dismantle the dochara by demolishing its mud pillars, as a result of which its thatched roof fell down. Having achieved their object, the mob is said to have left the place, taking away along with them a palang, a bamboo cot, two quilts, one lantern and one garansa.
3. The incident attracted a number of villagers to the spot including Jagdish Singh, Bhagwat Singh (since dead) and Ajodhya Singh. After report was lodged of the incident, the police arrived on the spot, held the panchnama (inquest) on the body of Lal Deo Singh and followed the usual procedure. A search was made for the seven accused persons, including the appellants, but it took same time to find them out and arrest them. Eventually, they were placed before a magistrate who committed them for trial for offences under S. 148, S. 302 read with S. 149 and S. 426, I.P.C., the appellant Ram Bilas Singh, Ramdeo Singh and Ram Bilas Singh Gumasta of Dihara were specifically charged with offences under S. 302, I.P.C. for having committed the murder of Laldeo Singh. Ram Bilas Singh was further charged under Section 307 of the Indian Penal Code for attempt to commit the murder of Deva Singh while Ram Naresh Singh and Dinesh Singh (appellants 2 and 3) were further charged with offences under S. 323, I.P.C. for assaulting Dhunmun Singh (P.W. 4). The court of Session acquitted both Ram Bilas Singh as well as Ramdeo Singh of the offence under S. 302, I.P.C. and also acquitted all the seven accused persons of the offence under S. 302 read with S. 149, I.P.C. It, however, convicted the three appellants before us under S. 304 second part, read with S. 149 of the I.P.C. and under Ss. 147 and 426, I.P.C. but acquitted the appellants 2 and 3 of the offence under S. 323 I.P.C.
4. Briefly stated, the defence of the three appellants was that the appellant Ram Bilas Singh was in possession of the dochara, that it was Laldeo Singh and Deva Singh who threatened to dismantle the dochara and, therefore, they marched there on the date of the incident at the head of a mob consisting of 15 or 20 persons carrying with them various weapons. During the incident, Laldeo
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