Nanak Chand v. The State of Punjab

Punjab

J. in Chapter VIII of that Code which deals with offences Imam against the public tranquillity. Section 149 of the

Indian Penal Code reads :- v

·'If an offence is committed by any member of an unlawful assembly m prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed m prosecution of that object, every person who, at the time of the committing of that offence, 1s a member of the same assembly, 1s guilty of that offence".

This section postulates that an offence 1s committed by a member of an unlawful assembly m prosecution of the common object of that assembly or such as a member of the assembly knew to be likely to be committed m 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 comm1ss10n of the offence, was guilty of that offence. Under this section a person, who 1s a member of an unlawful assembly 1s made guilty of the offence com-mitted by another member of the same assembly, m -I the circumstances mentioned m the section, although he had no intention to commit that offence and had done no overt act except his presence m the assembly and sharing the common object of that assembly. Without the prov1S1ons 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 ac- -cused are acquitted of riot and the charge for being· members of an unlawful assemblv fails. there can be no conviction of any one of the~ for ~n offence which he had not himself committed. Similarly under sec-tion 150 of the Indian Penal Code, a specific offence is ·created. Under this section a person need n1)( be a member of an unlawful assembly and yet he would be guilty of being a member of an unlawful assembly and guilty of an offence which may be committed by .-a member of the unlawful assembly in the c1rcum-1955 -stances mentioned in the section. Sections 149 and Nanak Chand 150 of the Indian Penal Code are not the only sections v. in that Code which create a specific offence. Section The State of Puiifah -471 of the Indian Penal Code makes it an offence to _fraudulently or dishonestly use as genuine any docu-Imam J• ment which a person knows or has reason to believe to be a forged document and it provides that such a person shall be punished in the same manner as if he had forged such document. Abetment is an offence under the Indian Penal Code and is a separate crime to the principal offence. The sentence to be inflicted may be the same as for the principal offence. In Chapter XI of the Indian Penal Code offences of false ·evidence and against public justice are mentioned.

Section 193 prescribes the punishment for giving false evidence in any stage of a judicial proceeding or fabri- ·cating false evidence for the purpose of being used in .any stage of a judicial proceeding. Section 195 creates .an offence and the person convicted of this offence is liable in certain circumstances to be punished in the same manner as a person convicted of the principal __,. ·offence. Sections 196 and 197 to 200 of the Indian

Penal Code also create offences and a person convicted ·under any one of them would be liable to be punished in the same manner as if he had given false evidence.

It was, however, urged on behalf of the Prosecu-tion that _section 149 merely provides for constructive guilt similar to section 34 of the Indian Penal Code.

Section 34 reads:

"When a criminal act is done by several persons, in furtherance of the common intention of all, each ·of such persons is liable for that act in the same manner as if it were done by him alone".

'This section is merely explanatory. Several persons must be actuated by a common intention and when in furtherance of that common intention a criminal .act is done by them, each of them is liable for that .act as if tlie act had been, done by him alone. This section does not create any specific offence. As was pointed out by Lord Sumner in Barendra Kumar ;Ghosh v. Emperor(1) "'a criminal act' means that

{1) [1925] I.L.R. 52 Cal. 197.

1955 unity of criminal behaviour which results m some-Nanak Chand thing, for which an individual would be punishable,

v. if it were all done by himself alone, that is, in a crimi-The State of

Punjab nal offence". There is a clear distinction between the

provisions of sections 34 and 149 of the Indian Penal Imam j.

Code and the two sections are not to be confused~­ The principal element m section 34 of the Indian Penal Code is the common intention to commit a: cnme. In furtherance of the common intention seve-ral acts may be done by several persons resulting m the comm1ss10n of that cnme. In sucb a situation section 34 provides that each one of them would be liable for that crnne 111 the same manner as if all the acts resulting m that cnme had been done by him alone. There is no question of common intention m section 149 of the Indian Penal Code. An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and other members of the un-lawful assembly to commit that offence provided the conditions laid down in the section are fulfilled. Thusc if the offence committed by that person 1s m prosecu-tion of the common object of the unlawful assembly or such as the members of that 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 comm1ss10n of that offence. In Barendra Kumar Ghosh v. Emperor(') i. Lord Sumner dealt with the argument that if section I 34 of the Indian Penal Code bore the meaning adopt-ed by the Calcutta High Court, then sections 114 and 149 of that Code would be otiose. In the opm10n of Lord Sumner, however, section 149 is certainly not otiose, for 111 any case it created a specific offence. It postulated an assembly of five or more persons, having a common object, as 'named m section 141 of the Indian Penal Code and then the comm1ss10n of µ an offence by one member of it in prosecution of that object and he referred to Queen v. Sabid Ali and

(1) [1925) LL,R. 52 Cal. 197, r-- ,OthersC ). He pointed out that there was a difference 1955

between object and intention, for although the object Nanak Chand: may be common, the intentions of the several mem-v. bers of the unlawful assembly may differ and indeed The State of Punjab may be similar only in respect that they are all un-lawful, while the element of participation in action, Imam ··which is the leading feature of section 34, was re-

placed in section 149 by membership of the assembly --<; at the time of the committing of the offence. It was

argued, however, that these observations of Lord Sumner were obiter dicta. Assuming though not con-ceding that that may be so, the observations of a Judge of such eminence must carry weight parti-cularly 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 be-fore the Privy Council, the Privy Council reviewing as a whole the provisions of sections 34, 114 and 149 of the Indian Penal Code.

On behalf of the appellant certain decisions of the Calcutta High Court were relied upon in support of the submission made, viz. Panchu Das v. Emperor(2), Reazuddi and Others v. King-Emperor( 3 and Empe- ) ror v. Madan Manda! and Others(4). These decisions support the contention that it will be illegal to con-vict an accused of the substantive offence under a sec-tion without a charge being framed if he was acquitted of the offence under that section read with section 149 of the Indian Penal Code. On the other hand, the prosecution relied upon a decision of the Full Bench of the Madras High Court in T heethumalai Gounder I and Others v. King-Emperor(s ) and the case Queen-

Empress v. Bisheshar and Others( 6 The decision of ).

the Madras High Court was given in April, 1924, and reliance was placed upon the decision of the Allaha-bad High Court. The decision of the Privy Council in Barendra Kumar Ghosh's case was in October, 1924.

The Madras High Court, therefore, did not have be-fore it the decision of the Privy Council. It is im- .,LJ possible to say what view might have been expressed

(1 J f1873] 20 vV. R. (Cr.) 5. (2) [1907] I.L.R. 34 Cal. 698.

(3) [1901] 6 C.W.N. 98. (4) [1914] I.L.R. 41 Cal. 662.

(5) (1924] LL.R. 47 Mad. 746. (6) [1887] LL.R. 9 All. 645.

1955 by that court if the Privy Council's judgment m the JV'anak Chand aforesaid case had been available to the court. The

v. view of the Calcutta High Court had been noticed The State of

Punjab and it appears that a decision of the Madras High

J. Court in Taikkottathil Kunheen(') was to the effect that .fmam 149

section of the Indian Penal Code is a distinct offence from section 325 of the Indian Penal Code. Because of this it was thought advisable to refer the matter to a Full Bench. Two questions were referred to the Full Bench: (1) When a charge omits section 149, Indian Penal Code, and the conviction is based on the provisions of that section, is that conviction necessarily bad, or does it depend on whether the accused has or has not been materially prejudiced by the omission ? (2) When a charge has been framed under sections 326 and 149, Indian Penal Code, is a conviction under section 326, Indian Penal Code, necessarily bad, or does this also depend on whether the accused has or has not been materially prejudiced by the form of the charge ? The Full Bench agreed with the view expressed by Sir John Edge m the Allahabad case that section 149 created no offence, but was, like section 34, merely declaratory of a princi-ple of the common law, and its object was to make it clear that an accused who comes within that sec-tion cannot put forward as a defence that it was not his hand which inflicted the grievous hurt. It was -observed by Spencer, J. that a person could not be tried and sentenced under section 149 alone, as no punishment IS provided by the section. Therefore the omiss10n of section 149 from a charge does not create an illegality by reason of section 233 of the Code of Criminal Procedure which provides that for -every distinct offence of which any person 1s accused there shall be a separate charge. They did not agree with the general statement m Reazuddi' s case(') that it IS settled law that when a person 1s charged by implication under section 149, he cannot be convicted of the substantive offence.

A charge for a substantive offence under section µ 302, or section 325 of the Indian Penal_ Code, etc. is for a distinct and separate offence from that under section

(r) [1923] 18 L.W. 946. (2) [1901J 6 C.W.N. 98. 302, read with section 149 or section 325, read with sec-tion 149, etc. and to that extent the Madras view is in-Nanak Chano. correct. It was urged by reference to section 40 of the v. Indian Penal Code that section 149 cannot be regarded The State ef Punjab as creating an 'offence' because it does not itself pro-vide for a punishment. Section 149 creates an offence Imam J, . 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 members of an unlawful assembly are guilty of the offence committed by one of them in the prosecution of the common object at once subjects all the mem-bers to the punishment prescribed for that offence and the relative sentence. Reliance was also placed upon the decision of the Patna High Court in Ram;asray Ahir v. King-Emperor(') as well as the decision of the Allahabad High Court in Sheo Ram and Others v.

Emperor(2). In the former case the decision· of the Privy Council in Barendra Kumar Ghosh's case was not considered and the decision followed the Full Bench of the Madras High Court and the opinion of Sir John Edge. In the latter case the Allahabad High Court definitely declined to answer the question as to whe-ther the accused charged with an offence read with section 149, Indian Penal Code, or with an offence read with section 34, Indian Penal Code, could be convicted of the substantive offence only.

After an examination of the case referred to on oehaii of the appellant and the prosecution we are of the opinion that the view taken by the Calcutta High Court is the correct view namely, that a person charged with an offence read with section 149 cannot be convicted of the substantive offence without a specific charge being framed as required by section 233 of the Code of Criminal Procedure.

It was urged that in view of the decision of this Court in Karnail Singh and another v. State of Pun-jab( 3 ) a conviction under section 302, read with sec-

(1) [1928] I.L.R. 7 Patna 484. s.c.R. (2) A.LR. 1948 All. 162.

(3) 1954 901J,· '955 tion 149, could be converted into a conviction under .N_anak Chand section 302/34 which the trial Court did. There could

v. be no valid objection, therefore, to converting a con. Th•Stal<of viction under section 302/34 into one under section

Punjab

302 which the High Court did. This argument is un-Imam ]. acceptable. The High Court clearly found that section

34 was not applicable to the facts of the case and acquitted the other accused under section 302/34, that is to say the other accused were wrongly con-victed by the trial court in that way but the appellant should have been convicted under section 302. The High Court could not do what the trial court itself could not do, namely, convict under section 302, as no separate charge had been framed under that section. It was urged by the Prosecution that under the provisions of section 236 and section 237 of the Code of Criminal Procedure a person could be convicted of an offence which he is shown to have committed al-though he was not charged with it. Section 237 of the Code of Criminal Procedure is entirely dependent on the provisions of section 236 of that Code. The prov1S1ons of section 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 and tried or alternative charges can be framed. In these circumstances if there had been an omission to frame a charge, then under section 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 ap-pellant that he had caused the injuries to the deceased with takwa 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 section 236 of the Code of Criminal Procedure.

It had been argued on behalf of the prosecution that no finding or sentence pronounced shall be deemed invalid merely on the ground that no charge was framed. Reliance was placed on the provisions of section 535 of the Code of Criminal Procedure. ~... .... Reference was also made to the provisions of section 1955

537 of that Code. Section 535 does permit a court of Nanak Chand appeal or revision to set aside the finding or sentence v. if in its opinion the noncframing of a charge has re-The State of Punjab sulted in a failure of justice. Section 537 also permits a court of appeal or revision to set aside a finding or Imam §entence if any error, omission or irregularity in the charge has, in fact, occasioned a failure of justice .

y "-'· The explanation to the section no doubt directs that

the court shall have regard to the fact that the ob-jection could and should have been raised at an ear-lier stage in the proceedings. In the present case, however, there is no question of any error, omission or irregularity in the charge because no charge under section 302 of the Indian Penal Code was in fact framed. Section 232 of the Code of Criminal Proce-dure permits an appellate court or a court of revision, if satisfied that any person convicted of an offence was misled in his defence in the absence of a charge or by an error in the charge, to direct a new trial to be had upon a charge framed in whatever manner it thinks fit. In the present case we are of the opinion that there was an illegality and not an irregularity V" curable by the provisions of sections 535 and 537 of

the Code of Criminal Procedure. Assuming, however, for a moment that there was merely an irregularity which was curable, we are satisfied that, in the circum-stances of the present case, the irregularity is not curable because the appellant was misled in his de-fence by the absence of a charge under section 302 of the Indian Penal Code.

By framing a charge under section 302, read with i section 149 of the Indian Penal Code against the ap-

pellant, the Court indicated that it was not charging the appellant with the offen.ce of murder and to con-vict him for murder and sentence him under section 302 of the Indian Penal Code 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 ,Lj have considered it unnecessary to concentrate on that

part of the prosecution case. Attention has been 1955 drawn to the Medical evidence. With reference to Nanl'k Chand injury No. 1 the doctor stated that the wounds were

v. not very clean-cut. It is further pointed out that the The State of I

Pu'f!;ab other incised· injuries on the head were bone deep.

J. The bone, however, had not been cut. Injuries on the Imam head although inflicted by a blunt weapon may some-.

times assume the characteristics of an incised wound. Reference was made to Glaister on Medical Jurispru-~ dence, 9th Ed., at page 241, where it is stated that under certain circumstances, and in certain situations on the body, wounds produced by a blunt instrument may stimulate the appearance of an incised wound. These wounds are usually found over the bone which is thinly covered with tissue, in the regions of the head, forehead, eyebrow, cheek, and lower jaw, among others. It is also pointed that Vas Dev P.W. 2 had admitted that Mitu took away the takwa from the appellant after Sadhu Ram had been dragged out of the shop but no takwa blow was given outside the shop. Prakash Chand P.W. 4, another eye-witness,. also admitted that Mitu had taken the takwa from the appellant when they had come out of the shop. It was urged that if a specific charge for murder had been framed against the appellant, he would have questioned the doctor more closely about the incised injuries on the head of the deceased, as well as the prosecution witnesses. It is difficult to hold in the circumstances of the present case that the appellant was not prejudiced by the non-framing of a charge under section 302, Indian Penal Code. I Having regard to the view expressed on the ques-tion of law, it is unnecessary to refer to the arguments on the facts.

The appeal is accordingly allowed and the convic-tion and the sentence of the appellant is set aside and the case of the appellant is remanded to the court of Sessions at Jullundur for retrial after framing a charge under section 302 of the Indian Penal Code and in accordance with law.

Appeal allowed.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 132 of 1954.

Appeal by Special Leave granted by the Supreme Court by its Order dated the 3rd September, 1954 from the Judgment and Order dated the 15th June 1954 of the High Court of Judicature for the State of Punjab at Simla in Criminal in Appeal No. 287 of 1954 arising out of the Judgment and Order dated the 14th April 1954 of the Court of Additional Sessions Judge in Session Case No. 4 of 1954.

/. G. Sethi, (Naunit Lal, with him), for the appel-lant.

1955 Gopal Singh and P. G. Gokhale, for the respon-Nanak Chand dent.

v. 1955. January 25. The Judgment of the The StaU of Court was delivered by

JJ_ury'ab

IMAM J.-This appeal by Nanak Chand comes by special leave against the judgment of the Punjab (I) _, High Court. The appellant was convicted by the v High Court under section 302 of the Indian Penal Code and the sentence of death passed on him by the Additional Sessions Judge of Jullundur was con-firmed.

On the facts alleged by the .Prosecution there can be no doubt that Sadhu Ram was killed on the 5th of November, 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 appel-lant was armed with a takwa. Numerous injuries were found on the person of Sadhu Ram. According to the doctor, who held the post-mortem examination, injuries 1, 3 and 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 bv any other person with a takwa. Accord-ing to the Medicai evidence, injuries 1, 3 and 4 indivi-dually,· as well as collectively, were enough to cause death in the ordinary course of nature.

In the Court of Sessions the appellant along with others was charged under section 148 and section 302, read with section 149 of the Indian Penal Code. The Additional Sessions Judge, however, held that the charge of rioting was not proved. He accord-ingly found the appellant and three others guilty under section 302, read with section 34 of the Indian Penal Code. 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 section 302 of the Indian Penal Code, confirming the sentence of death but altered the conviction of the other accused from section 302/34 to section 323, Indian Penal Code. It held \L that the provisions of section 34 of the Indian Penal Code did not apply.

On behalf of the appellant questions of law and . 1955 questions of fact were urged. It will be unnecessary Nanak Chand to deal with the questions of fact if the argument on v. points of law is accepted. The State of Purifah The principal question of law to be considered is as Imam to whether the appellant could legally be convicted for merder and sentenced under section 302, Indian Penal Code 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 section 302/149 of the Indian Penal Code, he could not be con-victed for the substantive offence of murder under section 302, Indian Penal Code, 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( 1 and certain ) decisions of the 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 sections 234, 235, 236, 237 and 239 of the Code of Criminal Procedure. Section 149 of the Indian Penal .... Code creates a specific offence and it is a separate

offence from the offence of murder punishable under section 302 of the Indian Penal Code. The provisions of sections 236, 237 and 238 of the Code of Criminal Procedure did not apply to the facts and cJrcum-stances of the present case. On behalf of the Prose-l cution, however, it was urged that section 149 did

not create any offence at all and therefore no sepa-rate charge was obligatory under section 233 of the Code of Criminal Procedure and that in any event the provisions of sections 236 and 237 of the Code of Criminal Procedure did apply and the appellant could have been convicted and sentenced under section 302 of the Indian Penal Code, although no charge for the substantive offence of murder had been framed against him.

(1) [1925] I.L.R. 52 Cal. 197.

1935 It is necessary, therefore, to exammc the prov1s10ns .Nanak C.~arui of section 149 of the Indian Penal Code and consider

v. as to whether tills section creates a specific offence. The State of Section 149 of the Indian Penal Code 1s to be found