Maina Singh v State of Rajasthan 1976

हिंदी में पढ़ने के लिए यहां क्लिक करें

Case Summary

Full Case Details

P.N. SHINGHAL, J. – This appeal of Maina Singh arises out of the judgment of the Rajasthan High Court dated April 21, 1971 upholding the trial Court’s judgment convicting him of an offence under Secon 302 read with Secon 34 I.P.C. for causing the death of Amar Singh and of an offence under Section 326 I.P.C. for causing grievous injuries to Amar Singh’s son Ajeet Singh (PW 2), and sentencing him to imprisonment for life for the offence of murder and to rigorous imprisonment for three years and a fine of Rs 100 for the other offence.

2. The deceased Amar Singh and accused Maina Singh and his three sons Hardeep Singh, Jeet Singh and Puran Singh used to live in ‘chak’ No. 77 GB, in Ganganagar district of Rajasthan while Narain Singh used to live in another ‘chak’. It was alleged that the relaons between Amar Singh and Maina Singh were strained, as Maina Singh suspected that Amar Singh was giving informaon about his smuggling acvies. Amar Singh was having some construcon work done in his house and had engaged Isar Ram (PW 3) as a mason. On June 29, 1967, at about sunset, the deceased Amar Singh, his son Ajeet Singh (PW 2) and Isar Ram (PW 3) went to the ‘diggi’ in ‘murabba’ 35 for bath. Ajeet Singh took his bath, and was changing his clothes and Isar Ram was nearby. Amar Singh was cleaning his ‘lota’ after aending the call of nature. It is alleged that at that me Maina Singh and his three sons Hardeep Singli, Jeel Singh and Puran Singh came to the ‘diggi’ along with Narain Singh. Maina “Singh was armed with a 12 bore gun, Puran Singh with a ‘takua’ and the other three with ‘gandasis’. Maina Singh fired at Amar Singh, but could not hit him. The gunshots however hit Ajeet Singh (PW 2) on his legs and he jumped into a dry watercourse which was nearby to take cover. Maina Singh fired again, but without success. Amar Singh ran towards the sugarcane field crying for help but was chased by the accused. Ajeet Singh thereupon ran towards ‘chak’ No. 78 GB and ultimately went and lodged a report at police station Anoopgarh at 10 p.m. aer covering a distance of about six miles. The five accused however followed Amar Singh. Maina Singh fired his gun at Amar Singh and he fell down. The other accused went near him and gave ‘gandasi’ blows, and Maina Singh gave a blow or two with. the bu end of his gun which broke and the broken pieces fell down. Amar Singh succumbed to his injuries on the spot, and the accused ran away.

3. On the report of Ajeet Singh about the incident which took place by the me he le for the police staon, the police registered a case for an offence under Secon 307 read with Secon 149 I.P.C. and started invesgaon. The body of Amar Singh was sent for post- mortem examinaon. The report Ex. P-9 of Dr Shanker Lal (PW 5) is on the record. The injuries of Ajeet Singh (PW 2) were also examined by Dr Shanker Lal and his report in that connecon is Ex. P-10. It was found that there were several gunshot injuries, incised wounds and lacerated wounds on the body of the deceased, and there were as many as 12 gunshot wounds on the person of Ajeet Singh (PW 2). All the five accused were found absconding and could be taken into custody aer proceedings were started against them under Secons 87 and 88 Cr. P.C. Maina Singh held a licence for gun Ex. 23 and led to its recovery during the course of the invesgaon vide memorandum Ex. P-43. At that me, its bu was found to be missing. Its broken pieces had however been recovered by the invesgang officer earlier, along with .the empty cartridges.

4. The prosecuon examined Ajeet Singh (PW 2), Isar Ram (PW 3) and Smt. Jangir Kaur (PW 7) the wife of the deceased as eyewitnesses of the incident. The accused denied the allegaon of the prosecuon altogether, but Maina Singh admied that the gun belonged to him and he held a licence for it. The Sessions Judge disbelieved the evidence of Smt. Jangir Kaur (PW 7) mainly for the reason that her name had not been menoned in the first informaon report. He took the view that the statements of Ajeet Singh (PW 2) and Isar Ram (PW 3) were inconsistent regarding the part played by Hardeep Singh, Jeet Singh, Narain Singh and Puran Singh accused, and although he held that one or more of the accused persons, besides Maina Singh, might be responsible for causing injuries to the deceased, along with Maina Singh, he held further that it could not be ascertained which one of the accused was with him. He also took the view that “someone else might have been with him” and he therefore gave the benefit of doubt to accused Hardeep Singh, Jeet Singh, Puran Singh and Narain Singh and acquied them. As the statements of Ajeet Singh (PW 2) and Isar Ram (PW 3) were found to be consistent against appellant Maina Singh, and as there was circumstanal evidence in the shape of the recovery of empty cartridges near the dead body and gun (Ex. 23), as well as the medical evidence, and the fact that the accused had absconded, the learned Sessions Judge convicted and sentenced him as aforesaid.

5. An appeal was preferred by the State against the acquial of the remaining four accused, and Maina Singh also filed an appeal against his convicon. The High Court dismissed both the appeals and maintained the convicon and sentence of Maina Singh as aforesaid.

6. Mr. Harbans Singh appearing on behalf of appellant Maina Singh has not been able to challenge the evidence on which appellant Maina Singh has been convicted, but he has raised the substanal argument that he could not have been convicted of the offence of murder under Secon 302 read with Secon 34 I.P.C. when the four co-accused had been acquied and the Sessions Judge had found that it was not possible to record a convicon under Secon 302 read with Secon 149 I.P.C. or Secon 148 I.P.C. It has been argued that when the other four accused were given the benefit of doubt and were acquied, it could not be held, in law, that they formed an unlawful assembly or that any offence was commied by appellant Maina Singh in prosecuon of the common object of that assembly. It has been argued further that, a forori, it was not permissible for the court of sessions or the High Court to take the view that a criminal act was done by appellant Maina Singh in furtherance of the common intenon of the “other accused” when those accused had been named to be no other than Hardeep Singh, Puran Singh, Jeet Singh and Narain Singh who had all been acquied. It has therefore been argued that all that was permissible for the High Court was to convict appellant Maina Singh of any offence which he might have commied in his individual capacity, without reference to the parcipaon of any other person in. the crime. On the other hand, it has been argued by Mr. S. M. Jain that as the learned Sessions Judge had acquied the remaining four accused by giving them the benefit of doubt, and had recorded the finding that one or more of the accused persons or some other person might have parcipated in the crime along with Maina Singh, the High Court was quite jusfied in upholding the convicon of the appellant Maina Singh of an offence under Secon 302/34 I.P.C.

7. The relevant poron of the judgment of the trial Court, which bears on the controversy and has been extracted with approval in the impugned judgment of the High Court, is as follows:
The injuries found on the person of the deceased Amar Singh were with firearm, blunt as well as sharp weapon. The firearm injuries and the blunt weapon injuries have been assigned to Maina Singh and so there must have been other person also along with Maina Singh in causing injuries to the deceased. It can be so inferred from the statements of Isar Ram and Ajeet Singh also. These facts could no doubt create a strong suspicion that one or more of the accused persons might be responsible along with Maina Singh in causing injuries to the deceased. In view of the statement of Isar Ram and Ajeet Singh it cannot however be ascertained which one of the accused was with Maina Singh and it was also possible that someone else might have been with him. In such a case the prosecuon version against these four accused persons arc not proved beyond doubt. They arc therefore not guilty of the offence with which they have been charged.

It would thus appear that the view which has found favour with the High Court is that as there were injuries with firearm and with blunt and sharp-edged weapons, and as the firearm and the blunt weapon injuries had been ascribed to Maina Singh, there must have been one other person with him in causing the injuries to the deceased. At the same me, it has been held further that these facts could only create a strong suspicion “that one or more of the accused persons might be responsible along with Maina Singh in causing the injuries to the deceased”, but it could not be ascertained which one of the accused was with him and that it was also possible that “someone else might have been with him”. The finding therefore is that the other person might have been one of the other accused or someone else, and not that the other associate in the crime was a person other than the accused. Thus the finding is not categorical and does not exclude the possibility of inflicon of the injuries in furtherance of the common intenon of one of the acquied accused and the appellant.

8. Another significant fact which bears on the argument of Mr. Harbans Singh is that while in the original charge-sheet the Sessions Judge specifically named appellant Maina Singh and the other accused Hardeep Singh, Puran Singh, Jeet Singh and Narain Singh as forming an unlawful assembly and for causing the death of Amar Singh in furtherance of the common object of that assembly, he altered that charge but retained, at the same me, the charge that Maina Singh formed an unlawful assembly along with the “other accused” with the common object of murdering Amar Singh and intenonally caused injuries to him along with “the other accused” in prosecution of that common object. In this case therefore Maina Singh and the other four accused were alleged, all along, to have parcipated in the crime and were named in the chargesheet as the perpetrators of the crime without there being an allegaon that some other person (besides the accused) took part in it in any manner whatsoever. It was in fact the case from the very beginning, including the first informaon report, that the offence was commied by all the five named accused, and even the evidence of the prosecuon was confined to them all through and to no other person. The queson is whether the High Court was right in upholding the convicon of the appellant with reference to Secon 34 I.P.C. in these circumstances?

9. Such a queson came up for consideraon in this Court on earlier occasions, and we shall refer to some of those decisions in order to appreciate the argument of Mr. Jain that the decision in Dharam Pal v. State of U. P. [(1975) 2 SCC 596] expresses the latest view of this Court and would justify the appellant’s conviction by invoking Section 34 I.P.C.

10. We may start by making a reference to King v. PIummer [(1902) 2 KB 339] which, as we shall show has been cited with approval by this Court in some of its decisions. That was a case where there was a trial of an indictment charging three persons jointly with conspiring together. One of them pleaded guilty, and a judgment was passed against him and the other two were acquied. It was alleged that the judgment passed against the one who pleaded guilty was bad and could not stand. Lord Jusce Wright held that there was much authority

to the effect that if there was acquial of the only alleged co-conspirators, no judgment could have been passed on the appellant, if he had not pleaded guilty, because the verdict must have been regarded as repugnant in finding that there was a criminal agreement between the appellant and the others and none between them and him. In taking that view he made a reference to Harrison v. Errington [(1627) Popham, 202] whereupon an indictment of three for riot two were found not guilty and one guilty, and upon error brought it was held a “void verdict”. Bruce, J. who was the other judge in the case made a reference to the following statement in Chiy’s Criminal Law while agreeing with the view taken by Wright, J.:
And it is holden that if all the defendants menoned in the indictment, except one, are acquied, and it is not stated as a conspiracy with certain persons unknown, the convicon of the single defendant will be invalid, and no judgment can be passed upon him.

11. This Court approved Plummer’s case in its decision in Topandas v. State of Bombay [AIR 1956 SC 33]. That was a case where four named individuals were charged with having commied an offence under Secon 120-B I.P.C. and three out of those four were acquied. This Court held that the remaining accused could not be convicted of the offence as his alleged co-parcipators had been acquied, for that would be clearly illegal.

12. A similar point came up for consideraon in Mohan Singh v. State of Punjab [AIR 1963 SC 174]. There two of the five persons who were tried together were acquied while two were convicted under Secon 302 read with Secon 149 and Secon 147 I.P.C. In the charge those five accused persons and none others were menoned as forming the unlawful assembly and the evidence led in the case was confined to them. The proved facts showed that the two appellants and the other convicted person, who inflicted the fatal blow, were actuated by common intenon of fatally assaulng the deceased. While examining the queson of their liability, it was observed as follows:

Cases may also arise where in the charge the prosecuon names five or more persons and alleges that they constuted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquied leaving before the court less than five persons to be tried, then Secon 149 cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not idenfied and so not named. In such cases, either the trial Court or even the High Court in appeal may be able to come to the conclusion that the acquial of some of the persons named in the charge and tried will not necessarily displace the charge under Secon 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been idenfied and so have not been named. In such cases, the acquial of one or more persons named in the charge does not affect the validity of the charge under Secon 149 because on the evidence the court of facts is liable to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five.

13. The other case to which we may make a reference is Krishna Govind Pal v. State of Maharashtra [AIR 1963 SC 1413]. It noced and upheld the earlier decision in Mohan Singh’s case and aer referring to the poron which we have extracted, it was held as follows:
It may be that the charge discloses only named persons; it may also be that the prosecuon witnesses named only the said accused; but there may be other evidence, such as that given by the court witnesses, defence witnesses or circumstanal pieces of evidence, which may disclose the existence of named or unnamed persons, other than those charged or deposed to by the prosecuon witnesses, and the court, on the basis of the said evidence, may come to the conclusion that others, named or unnamed, acted conjointly along with one of the accused charged. But such a conclusion is really based on evidence.

14. It would thus appear that even if, in a given case, the charge discloses only the named persons as co-accused and the prosecuon witnesses confine their tesmony to them, even then it would be permissible to come to the conclusion that others named or unnamed, besides those menoned in the charge or the evidence of the prosecuon witnesses, acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion, but not otherwise.

15. The decision in Krishna Govind Pal’s case was followed by the decision in Ram Bilas Singh v. State of Bihar [(1964) 1 SCR 775]. Aer nocing and approving the view taken in Plummer’s case and the decisions in Mohan Singh’s case and Krishna Govind Pal’s case this Court stated the law once again as follows:
The decisions of this Court quoted above thus make it clear that where the prosecuon case as set out in the charge and as supported by the evidence is to the effect that the alleged unlawful assembly consists of five or more named persons and no others, and there is no queson of any parcipaon by other persons not idenfied or idenfiable it is not open to the court to hold that there was an unlawful assembly unless it comes to the definite conclusion that five or more of the named persons were members thereof. Where, however, the case of the prosecuon and the evidence adduced indicates that a number in excess of five persons parcipated in the incident and some of them could, not be idenfied, it would be open to the court to convict less than five of the offence of being members of the unlawful assembly or convict them of the offence commied by the unlawful assembly with the aid of Secon 149 I. P. C. provided it comes to the conclusion that five or more persons parcipated in the incident.

16. The other decision to which our aenon has been invited is Yashwant v. State of Maharashtra [(1972) 3 SCC 639]. The decision in Krishna Govind Pal was cited there on behalf of the appellant and, while referring to the view expressed there, it was observed that in the case before the court there was evidence that the man who used the axe on Sukal was a man who looked like appellant Brahmanand Tiwari, and could be that accused himself. But, as the Court was not sasfied that the identy of the person who used the axe on Sukal was sasfactorily established, as that of Brahmanand Tiwari, it took the view that the remaining accused could be convicted with the aid of Secon 34 for the offences commied by them. This Court did not therefore disagree with the view taken in Krishna Govind Pal’s case, but purported to follow it in its decision and took the aforesaid view in regard to the identy of Brahmanand Tiwari for the purpose of disnguishing it from the case of Krishna Govind Pal where there was not a single observaon in the judgment to indicate that persons other than the named accused parcipated in the offence and there was no evidence also in that regard.

17. The maer once again came up for consideraon in Sukh Ram v. State of U. P. [(1974) 3 SCC 656]. The Court referred to its earlier decisions including those in Mohan Singh’s case and Krishna Govind Pal’s case and. while disnguishing them on facts, it observed that as the prosecuon did not put forward a case of the commission of crime by one known person and one or two unknown persons as in Sukh Ram’s case, and there was no evidence to the effect that the named accused had commied the crime with one or more other persons, the acquial of the other two accused raised no bar to the convicon of the appellant under Secon 302 read with Secon 34 I.P.C. The decision in Sukh Ram’s case cannot therefore be said to lay down a contrary view for it has upheld the view taken in the earlier decisions of this Court.

18. That leaves the case of Dharam Pal v. State of U. P. for consideraon. In that case four accused were tried with fourteen others for riong. The trial Court gave benefit of doubt to eleven of them, and acquied them. The remaining seven were convicted for the offence under Secon 302/149 1. P. C. and other offences. The High Court gave benefit of doubt to four of them, and held that at least four of the accused parcipated in the crime because of their admission and the injuries. On appeal this Court found that the aacking party could not conceivably have been of less than five because that was the number of the other party, and it was in that connecon that it held that there was no doubt about the number of the parcipants being not less than five. It was also held that as eighteen accused parcipated in the crime, and the Court gave the benefit of doubt to be on the side of safety, as a maer of abundant cauon, reducing the number to less than five, it may not be difficult to reach the conclusion, having regard to undeniable facts, that the number of the parcipants could not be less than five. That was therefore a case which was decided on its own facts but even so, it was observed as follows:
It may be that a definite conclusion that the number of parcipants was at least five may be very difficult to reach where the allegaon of parcipaon is confined to five known persons and there is no doubt about the identy of even one. It cannot therefore be said that the decision in Dharam Pal’s case is any different from the earlier decisions of this Court, or that it goes to support the view which has been taken by the High Court in the case before us. The view which has prevailed with this Court all along will therefore apply to the case before us.

19. As has been stated, the charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with the other named four co-accused, and with no other person. The trial in fact went on that basis throughout. There was also no direct or circumstanal evidence to show that the offence was commied by the appellant along with any other unnamed person. So when the other four co-accused have been given the benefit of doubt and have been acquied, it would not be permissible to take the view that there must have been some other person along with the appellant Maina Singh in causing the injuries to the deceased. It was as such not permissible to invoke Secon 149 or Secon 34 I.P.C. Maina Singh would accordingly be responsible for the offence, if any, which could be shown to have been commied by him without regard to the parcipaon of others.

20. The High Court has held that there could be no room for doubt that the firearm and the blunt weapon injuries which were found on the person of Amar Singh were caused by appellant Maina Singh and that finding has not been challenged before us by Mr. Harbans Singh. Dr Shanker Lal (PW 5) who performed the post-mortem examinaon stated that while all those injuries were collecvely sufficient in the ordinary course of nature to cause death, he could not say whether any of them was individually sufficient to cause death in the ordinary course of nature. It is not therefore possible to hold that the death of Amar Singh was caused by the gunshot or the blunt weapon injuries which were inflicted by appellant Maina Singh. Dr Shanker Lal has stated that the fracture of the frontal bone of the deceased could have been caused by external injuries Nos. 8, 10 and 12, and that he could die of that injury also but of those three injuries injury No. 12 was inflicted by a sharp-edged weapon and could not possibly be imputed to the appellant. The evidence on record therefore does not go to show that he was responsible for any such injury as could have resulted in Amar Singh’s death. The evidence however proves that he inflicted gunshot injuries on the deceased, and Dr Shanker Lal has stated that one of those injuries (injury No. 26) was grievous. Maina Singh was therefore guilty of voluntarily causing grievous hurt to the deceased by means of an instrument for shoong, and was guilty of an offence under Secon 326 I.P.C. In the circumstances of the case, we think it proper to sentence him to rigorous imprisonment for 10 years for that offence. As has been stated, he has been held guilty of a similar offence for the injuries inflicted on Ajeet Singh (PW 2) and his convicon and sentence for that other offence under Secon 326 I. P. C. has not been challenged before us.

21. The appeal is therefore allowed to the extent that the convicon or Maina Singh under Secon 302/34 I.P.C. is altered to one under Secon 326 I.P.C. and the sentence is reduced to rigorous imprisonment for ten years thereunder. The convicon under Secon 326, for causing injuries to Ajeet Singh, and the sentence of rigorous imprisonment for three years and a fine of Rs 100 call for no interference and are confirmed. Both the sentences will run concurrently.