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SUPREME COURT OF INDIA
B.P.Sinha, C.J.I., K.N.Wanchoo, N.Rajagopala Ayyangar, P.B.Gajendragadkar, T.L.Venkatarama Ayyar, JJ.
Mohan Singh
Versus
State Of Punjab
Case No. : 186 of 1960
Date of Decision : 3/15/62
Advocates Appeared: Bindra N.S. : Gheba R.S. : Menon P.D. : Singh Raghbir
The appellants Mohan Singh and Jagir Singh (uncle and nephew), along with Dalip Singh (father of Jagir Singh) and two Piara Singhs, were charged with offences under Sections 148, 302 read with 149, and 323 read with 149 of the Indian Penal Code in connection with an incident on 9 May 1959 at village Malsian. (!) (!) (!) The incident arose from a land dispute stemming from the partition-era migration, where the appellants and Dalip Singh had possessed land belonging to Tej Kaur (widow of their brother Tara Singh and daughter of deceased victim Gurdip Singh); Gurdip Singh, acting as Tej Kaur's attorney, secured eviction and possession orders, leading to warrants for delivery of possession. (!) On the day of the incident, Gurdip Singh, accompanied by Harnam Singh, Dara Singh, the Patwari, Qanungo, and Chowkidar, obtained delivery of possession of the disputed land; as the party returned, the appellants and Dalip Singh emerged armed with lathis (dangs) from hiding behind khajoor trees, chased and surrounded Gurdip Singh and Harnam Singh, with Dalip Singh inflicting a fatal head blow on Gurdip Singh (who died the next morning), Jagir Singh striking Gurdip Singh's arm, and all three assaulting Harnam Singh before fleeing upon alarm. (!) (!) The trial court convicted Dalip Singh under Section 302 and 147, the appellants under 302/149 and 147, but acquitted the two Piara Singhs due to doubt on their participation despite believing the assault involved five persons; the High Court confirmed these convictions. (!) (!) (!) The prosecution evidence, including eyewitnesses (Harnam Singh, Phula, Chowkidar, Qanungo) and medical evidence, was accepted as proving the assaults, with the appellants seen grazing cattle nearby before the attack. (!) (!)
Where a charge under Section 149 specifies exactly five named persons as comprising an unlawful assembly and the evidence is confined solely to those five persons, the acquittal of two of them reduces the assembly to three, rendering Section 149 inapplicable as an unlawful assembly requires five or more members under Section 141. (!) (!) (!) (!) Section 149 may still apply in other scenarios, such as where fewer than five are convicted but the charge or evidence indicates the assembly included absconders, unidentified persons, or more than five total members, provided the court finds on evidence that five or more shared the common object. (!) (!) (!) (!) However, where both charge and evidence are limited to the named five and no others, acquittal of some displaces Section 149, though courts may cautiously find additional unidentified members if evidence supports it without prejudice. (!) (!) (!) In such cases, conviction may be sustained under Section 34 if evidence proves a pre-arranged common intention (distinct from common object) animating the accused to participate in the criminal act, inferred from shared motive, lying in wait armed, chasing/surrounding victims, and joint assault in concert. (!) (!) Here, Section 149 was held inapplicable due to the strict confinement of charge and evidence to the five named accused, but Section 302/34 applied given the appellants' close relation, shared motive over land eviction, deliberate concealment armed with lathis, and coordinated attack on Gurdip Singh; conviction under 147 was set aside. (!) (!) (!) (!) (!)
P.B.GAJENDRAGADKAR, J.
(1) THIS appeal by special leave arises out of a criminal case in which the appellants Mohan Singh and Jagir Singh along with three others were charged with having committed offences under s.148 and s.302 read with s.149, as well as s.323, read with s.149 of the Indian Penal Code. The three other persons who were thus charged along with the two appellants were Dalip Singh and two Piara Singhs who were the sons of Ujagar Singh and Bahadur Singh respectively. Of the five accused persons, Dalip Singh was also charged under s.302. The case against these per. sons was tried by the II Additional Sessions Judge at Ferozepore. He held that the charges framed against the two Piara Singhs had not been proved beyond reasonable doubt. So, giving them the benefit of doubt, he acquitted them. Dalip Singh was convicted under S. 302 and 147 and the two appellants were convicted under s.302 read with S. 149 and 147. For the major offence of murder, all of them were sentenced to imprisonment for life and for the minor offence under s.147, each one of them was sentenced to six months rigorous imprisonment. These sentences were ordered to run concurrently. This order of conviction and sentence was challenged by the said three accused persons by preferring an appeal before the Punjab High court. The High court has accepted the findings of the trial Judge and has confirmed the orders of conviction and sentence passed against them. Thereafter, the said three accused moved this court for special leave. The application for special leave filed by Dalip Singh was dismissed, but that of the two appellants was granted. That is how the two appellants have come to this court by special leave, and on their behalf, Mr. Raghubir Singh has urged that the conviction of the appellants under s.302/149 is unsustainable in law, because as a result of the acquittal of the two Piara Singhs, the provisions of s.149 were inapplicable.
(2) BEFORE dealing with the merits of the contention thus raised by the appellants, it is necessary to state briefly the material facts leading to the prosecution of the appellants. The incident giving rise to the present case took place on the 9/05/1959, at a village called Malsian. The prosecution case is that on the said day, the five accused persons named in the charge were members of an unlawful assembly and that in prosecution of the common object of the said assembly, they committed rioting and at that time were armed with deadly weapons. It has also alleged that in pursuance of the said common object, Gurdip Singh, was murdered and injuries were caused to Harnam Singh. That is the bases of the charge under s.148 Indian Penal Code The second charge was that since Dalip Singh, one of the accused, had inflicted a fatal injury on Gurdip Singh on his head in prosecution of the common object of the unlawful assembly, all the members of the assembly were guilty under s.302/149 of the Indian Penal Code for the murder of Gurdip Singh. Dalip Singh was also charged under s.302 without reference to s.149. That is the substance of the charge based on the allegation that Gurdip Singh had been murdered in prosecution of the common object of the unlawful assembly. For the injury caused to Harnam Singh, an additional charge was framed under s.323/149. As we have already pointed out, in the present appeal we are concerned with the conviction of the appellants under s.302/149.
(3) IT appears that the appellants Mohan Singh and Jagir Singh are uncle and nephew respectively, the latter being the son of Mohan Singhs brother Dalip Singh who was one of the accused in the present case. There was a third brother named Tara Singh who was married to Tej Kaur, the daughter of Gurdip Singh, the victim of the assault. Tara Singh was murdered by some Muslims during the communal disturbances that raged in the Punjab in the wake of the partition of the country in 1947. As a result of the said communal disturbances, the pa
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