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 Section 302 read with Section 34 I.P.C. for causing the death of Amar Singh and of an offence u/s 326 I.P.C. for causing grievous injuries to Amar Singh’s son Ajeet Singh.
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. It was alleged that the relations between Amar Singh and Maina Singh were strained, as Maina Singh suspected that Amar Singh was giving information about his smuggling activities. Amar Singh was having some construction 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 and Isar Ram 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 attending the call of nature. It is alleged that at that time 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 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 and ultimately went and lodged a report at police station Anoopgarh at 10 p.m. after 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 butt 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.
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. All the five accused were found absconding. Maina Singh held a licence for gun Ex. 23 and led to its recovery during the course of the investigation vide memorandum Ex. P-43. At that time, its butt was found to be missing. Its broken pieces had however been recovered by the investigating officer earlier, along with empty cartridges.
The prosecution examined Ajeet Singh, Isar Ram (PW 3) and Smt. Jangir Kaur (PW 7) the wife of the deceased as eyewitnesses of the incident. The accused denied the allegation of the prosecution altogether, but Maina Singh admitted that the gun belonged to him and he held a licence for it. The Sessions Judge 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 acquitted 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 circumstantial 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.
Mr. Harbans Singh appearing on behalf of appellant has raised the substantial argument that he could not have been convicted of the offence of murder under Section 302 read with Section 34 I.P.C. when the four co-accused had been acquitted. It has been argued that when the other four accused were given the benefit of doubt and were acquitted, it could not be held, in law, that they formed an unlawful assembly or that any offence was committed by appellant Maina Singh in prosecution of the common object of that assembly.
Relevant portion 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:
Injuries found on the person of 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 prosecution version against these four accused persons are not proved beyond doubt. They are therefore not guilty of the offence with which they have been charged.
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 infliction of the injuries in furtherance of the common intention of one of the acquitted accused and the appellant.
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 time, the charge that Maina Singh formed an unlawful assembly along with the “other accused” with the common object of murdering Amar Singh and intentionally 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 participated in the crime and were named in the chargesheet as the perpetrators of the crime without there being an allegation 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 information report, that the offence was committed by all the five named accused, and even the evidence of the prosecution was confined to them all through and to no other person. The question is whether the High Court was right in upholding the conviction of the appellant with reference to Section 34 I.P.C. in these circumstances?
A similar point came up for consideration in Mohan Singh v. State of Punjab [1963 SC]. There two of the five persons who were tried together were acquitted while two were convicted under Section 302 read with Section 149 and Section 147 I.P.C. In the charge those five accused persons and none others were mentioned 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 intention of fatally assaulting the deceased. While examining the question of their liability, it was observed as follows:
Cases may also arise where in the charge the prosecution names five or more persons and alleges that they constituted 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 acquitted leaving before the court less than five persons to be tried, then Section 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 identified 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 acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under Section 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under Section 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.
The other case to which we may make a reference is Krishna Patil v. State of Maharashtra [1963 SC]. It was held as follows:
It may be that the charge discloses only named persons; it may also be that the prosecution witnesses named only the said accused; but there may be other evidence, such as that given by the court witnesses, defence witnesses or circumstantial pieces of evidence, which may disclose the existence of named or unnamed persons, other than those charged or deposed to by the prosecution 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.
It would thus appear that even if, in a given case, the charge discloses only the named persons as co-accused and the prosecution witnesses confine their testimony to them, even then it would be permissible to come to the conclusion that others named or unnamed, besides those mentioned in the charge or the evidence of the prosecution witnesses, acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion, but not otherwise.
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 circumstantial evidence to show that the offence was committed 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 acquitted, 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 Section 149 or Section 34 I.P.C. Maina Singh would accordingly be responsible for the offence, if any, which could be shown to have been committed by him without regard to the participation of others.
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. Dr Shanker Lal (PW 5) who performed the post-mortem examination stated that while all those injuries were collectively 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 was grievous. Maina Singh was therefore guilty of voluntarily causing grievous hurt to the deceased by means of an instrument for shooting, and was guilty of an offence under Section 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.
The appeal is therefore allowed to the extent that the conviction or Maina Singh under Section 302/34 I.P.C. is altered to one under Section 326 I.P.C. and the sentence is reduced to rigorous imprisonment for ten years thereunder.