Jagir Singh v. State of Punjab

INTRODUCTION

Six persons including two appellants were tried of murder. Sessions Judge acquitted

four accused as identification was not satisfactory but convicted two accused under

Sections 302 and 201 of the Indian Penal Code, 1860, read with Section 149 of the

Indian Penal Code, 1860. High Court altered the convictions to under Section 302 and

201 read with Section 32, the two accused who ever evicted accused filed an appeal

and contended as offence committed in furtherance of common intention all accused

should be acquitted. Court found that the two accused participated in offence with

four unknown culprits, though it is not known which particular person or persons gave

the fatal blow it is clear that the murder was committed by six culprits including the

two accused in furtherance of common intention of all they were rightly convicted

under Section 302 read with Section 34 of the Indian Penal Code.

FACTS

Tarlok Singh deceased was brutally attacked on the threshing floor of Amar Singh at a

distance of eighty feet from his Haveli near the outskirt of village Purana Pind on

April 27, 1965 at about 5:30 pm. The prosecution case was that all the six accused

came to the spot with the object of killing Tarlok Singh, accused 5 was riding a white

mare and carrying a spear, and the remaining five accused were on foot and were

armed with kirpans or swords. Accused 5 shouted a challenge saying that Tarlok

Singh must not be spared, accused 4 gave two kirpan blows on his feet, and accused 1

gave a sword blow on his neck and the other accused caused injuries to him with their

swords. When the victim was almost dead, it was placed on the mare in front of

accused 5 and all the six accused proceeded towards village Manoharpura. At a

distance of about a mile near the canal minor, the body of the victim was thrown on

the ground and accused 2 chopped the head from his body. Accused 2 and 5 rode

away on the mare with the severed lead wrapped in the chaddar and turban of the

victim and the other accused followed on foot. The investigating officer reached the

spot at about 6.30 p.m. The trunk of the dead body was recovered at a place about a

mile distant from village Purana Pind near the actual minor. The head was never

recovered. The identity of the trunk was satisfactorily established. The post- mortem

examination revealed six injuries. In the opinion of the medical witness, the death

resulted from the cutting of the neck, caused with some sharp-edged heavy weapon.

The Sessions Judge acquitted accused 2, 3, 4 and 6. He was not satisfied that the

witnesses had correctly identified accused 2, 4 and 6. He gave accused 3 the benefit of

doubt as the evidence of the witnesses regarding his presence was not corroborated by

other evidence. The courts below found that there could be no mistake about the

identity of accused 1 and 5. With regard to their identity, the veracity of Amar Singh

was not shaken and the evidence of the three other eye-witnesses was consistent

positive and unimpeachable. Accused 1 made a disclosure statement and pointed out a

place near the bank of the canal about a mile or a mile and a half from the place where

the trunk of the dead body had been found. Four pieces of teeth, one piece of skull

bone and hair recovered from the place pointed out by accused 1 were found to be of

human origin. There is reason to believe that the severed head of the victim was cut to

pieces at the spot. A chaddar was recovered from accused 1 at the time of his arrest.

The chaddar had been washed but on examination by the chemical examiner and

serologist it was found that it has stains of human blood. Both accused 1 and 5 had a

strong motive for the murder. Though the courts below discarded a part of the

prosecution story and gave the benefit of doubt to four accused, they were justified in

accepting the prosecution case regarding the participation of accused 1 and 5 in the

attack on the victim.

ISSUES

1. Whether there was an unlawful assembly with the common intention and objective to

commit murder.

2. Who is liable for delivering the fatal blow to the deceased?

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RULES & ANALYSIS WITH REFERENCE TO INDIAN PENAL

CODE, 1860

Section 34, Indian Penal Code, 1860:

Acts done by several persons in furtherance of common intention: 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.

Meaning: there are three main ingredients of the section:

(i) A criminal act must be done by several persons;

(ii) The criminal act must be to further the common intention of all, and

(iii) There must be participation of all persons in furthering the common intention.1

A common intention is an intention shared by the person who has committed the

offence and by other assailants who did not themselves commit it.2 The common

intention within the meaning of the section implies pre-arranged plan and to convict

accused of an offence by applying the section, it should be proved that the criminal

act was done in concert pursuant to the pre-arranged plan.3 Thus common intention is

intention shared by all. It is a prior meeting of minds and participation of all the

members of the group in the execution of that plan.4 Common intention is a question

of a fact in each case. It may be developed on the spur of the moment.5

Object of Section 34: Section 34 lays down only a rule of evidence and does not

create a substantive offence. This section is intended to meet cases in which it may be

difficult to distinguish between the acts of the individual members of a party or to

prove exactly what part was taken by each of them in furtherance of the common

intention of all. This section really means that if two or more persons intentionally do

a thing jointly, it is just the same as if each of them has done it individually. The

reason why all are deemed guilty in such cases is that the presence of accomplices

gives encouragement, support and protection to the person actually committing an act.

1 Parichhat v. State of Madhya Pradesh AIR 1972 SC 5352 AIR 1939 Oudh 207: Cri LJ 7223 AIR 1946 All 153: 1945 ALJ 5314 Matiullah Sheikh vs. State of W.B., AIR 1965 SC1325 Harjit Singh vs. State of Punjab, (2002) 6 SCC 739

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COMMON INTENTION AND COMMON OBJECT: DISTINCTION

Where there is no prior meeting of minds or pre-arranged plan, there is no common

intention. In such cases each one would be liable individually, but not vicariously.

Common intention is action in concert as pre-arranged plan. Common intention does

not mean similar intention of several persons.6 It should be shared by all.

Cases:

1. In Barendra Kumar Ghosh v King Empror7, the accused were charged under Section

302 read with section 34, with the murder of a postmaster. According to the evidence,

while was in his office busy counting money, three persons fired pistols at him as the

postmaster did not hand over the money to them. The accused was one of them. The

postmaster was hit in two places and he died. The trial judge directed the jury that if

they were satisfied that the postmaster was killed with furtherance of the common

intention of all the three men , then the accused was guilty of murder, whether he fired

the pistol shot or not. The court convicted him. In appeal to the Privy Council it was

held that the direction given to the jury was correct. Similarly where each several

persons took part in beating a person so as to break eighteen ribs and cause his death, 8

a number of men armed with sticks made a joint pre-planned attack on another man

and practically killed him on the spot,9 where a group of persons out of which some

had lathis and one had a gun set out towards a field with common intention of

attacking another group amd preventing them from irrigating a field from well and

attacked the other group killing two persons and injuring others,10 they all were held

guilty of murder on account of their common intention.11 However where evidence of

common intention was not forthcoming, the person could not be held guilty of

murder.12

2. Narinder Singh v. State of Punjab13: it is not necessary for bringing a case within the

scope of Section 34 to find as to who in fact inflicted the fatal blow. A conviction

6 Jadu Patel, 1979 Cut LR Ori 11.7 AIR 1925 PC1.8 G.C. Das, (1875) 24 WR Cr(5)9 Siphai Singh, (1922) 45 All 13010 Irshad Ullah Khan, (1933) 55 All 60711 Shankarlal Kacharabhai v. State of Gujrat, AIR 1965 SC 126012 Jumman Khan v. State of Punjab, AIR 1957 SC 46513 AIR 2000 SC 2212

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under the section read with the relevant substantive provision can be made when

ingredients required by the section are satisfied and it is not necessary to mention the

section number in the judgment.

Acts done in excess of common intention will not make others liable. 14

Section 149, Indian Penal Code, 1860:

Every member of unlawful assembly guilty of offence committed in prosecution

of common object: If an offence is committed by any member of an unlawful

assembly in prosecution of the common object of that assembly, or such as the

members or that assembly knew to be likely to be committed in prosecution of that

object, every person who, at the time of the committing of that offence, is a member of

the same assembly, is guilty of that offence.

Meaning: The law does not declare the mere assemblage of men, however large,

illegal. What is required is that in order to be illegal it must be inspired by an illegal

object.15 The principal is that law should discourage tumultuous assemblage of men.

The object of this section therefore is to prevent people from restoring to criminal

force.

The section has the following essentials-

(i) Commission of an offence by any member of an unlawful assembly.

(ii) Such offence must have been committed in prosecution of the common object of the

assembly; or must be such as the members of the assembly knew to be likely to be

committed.16

Scope of Section 149: The Section is divided into two parts:

1. In Prosecution of the Common Object: The words “in prosecution of the common

object” show that the offence committed was immediately connected with the

common object of the unlawful assembly of which accused were members. The act

must have been done with a view to accomplish the common object of the unlawful

assembly.

14 1 Hale PC 439.15 AIR 1925 Nag 260: 26 Cri LJ 587: 86 IC 73116 State of Maharashtra v. Kashiram, (2003) 10 SCC 434

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2. Members Knew to Be Likely: The second part relates to a situation where the

members of the assembly knew that the offence is likely to be committed in

prosecution of the common object. A thing is likely to happen only when the situation

is like “it will probably happen” or “may very well happen”. The word ‘knew’

indicates a state of mind at the time of commission of an offence; knowledge in this

regard must be proved. The word ‘likely’ means some clear evidence that the

unlawful assembly had such knowledge.

Exceptions of Section 149:

Principle of vicarious liability. This section is the declaratory of the principle of

vicarious liability of the members of an unlawful assembly for acts done in

prosecution of common object of that assembly, all the members of that assembly will

be vicariously liable for that offence even one or more, but not all committed the said

office.

Unlawful assembly: It is not necessary under any law that in all cases of unlawful

assembly, with an unlawful object, the unlawful assembly must be unlawful object to

attract this section. Also too attract section 149 of IPC, only member of unlawful

assembly is not enough, the person should have understood that assembly as unlawful

and was likely to commit any of the acts which fall within the purview of section 141

of IPC, and it must have been committed in prosecution of common object.

Common object: the word Object means purpose or design to make it common, it

must be share by all. It may be formed at any stage by all or few members. It may be

modify or altered or abandoned at any state. Common object may be formed by

express agreement after mutual consultation.  The sharing of common object would,

however, not necessarily require the member present and sharing the object to

engage himself in doing an over act. Therefore this section is inapplicable in a case

of sudden mutual fight between two parties, because of lack of common object.

Cases:

1. In Shambhu Nath Singh v. State of Bihar17, the Supreme Court has practically

summed up the law about vicarious liability of “every person” who, at the time of the

committing of [that] offence was a member of the assembly. Section 149 is

declaratory of the vicarious liability of the members of an unlawful assembly for acts

17 AIR 1960 SC 725

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done in the prosecution of the common object of that assembly or for such offences as

the members of the unlawful assembly knew to be likely to be committed in

prosecution of that object.

2. Bhajan Singh case18: where the accused came together with deadly weapons,

challenged the deceased in a determined fashion and then ran away together, it could

be presumed that their common object was to kill or at least they knew the fatal

consequences were likely to ensue in prosecution of the common object. They were,

therefore all liable under Section 302 read with Section 149 of the Indian Penal Code,

1860.

Section 201, Indian Penal Code, 1860:

Causing disappearance of evidence of offence, or giving false information to screen

offender: Whoever, knowing or having reason to believe that an offence has been committed,

causes any evidence of the commission of that offence to disappear, with the intention of

screening the offender from legal punishment, or with that intention gives any information

respecting the offence which he knows or believes to be false;

if a capital offence.—shall, if the offence which he knows or believes to have been

committed is punishable with death, be punished with imprisonment of either

description for a term which may extend to seven years, and shall also be liable to

fine;

if punishable with imprisonment for life.—and if the offence is punishable

with[imprisonment for life], or with imprisonment which may extend to ten years,

shall be punished with imprisonment of either description for a term which may

extend to three years, and shall also be liable to fine;

if punishable with less than ten years’ imprisonment.—and if the offence is

punishable with imprisonment for any term not extending to ten years, shall be

punished with imprisonment of the description provided for the offence, for a term

which may extend to one-fourth part of the longest term of the imprisonment provided

for the offence, or with fine, or with both.

Meaning: The section has four paras. Para one describes the offence and the

remaining paras lay down the punishment. The section is concerned with two

offences. First, causing the evidence of commission to disappear with the intention of 18 1974 CrLJ 1029

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screening the offender from legal punishment and second, giving false information

respecting an offence committed with the intention of screening the offender from

legal punishment.19

Cases:

1. State of U.P v. Mahendra Singh.20, where the members of an unlawful assembly

indiscriminately killed five persons, dragged the dead bodies over a distance,

beheaded the victims and threw the limbs and bodies in raging fire, they have not only

committed an offence under Section 201 of the Indian Penal Code, 1860, but were

also liable under Section 302 read with Section 149 of the Indian Penal Code.

2. Abdul Razaq’s case21, a conviction under Section 302 read with Section 201 of the

Indian Penal Code, should not be set aside only on the basis of minor discrepancies or

for non explanation of minor circumstances.

Section 302, Indian Penal Code, 1860:

Punishment for murder: Whoever commits murder shall be punished with death

or [imprisonment for life] and shall also be liable to fine.

Meaning: Section 302 provides punishment for murder. It stipulates a punishment of

death or imprisonment for life and fine. Once an offender is found by the court to be

guilty of the offence of murder under s 300, then it has to sentence the offender to

either death sentence or imprisonment for life. The court has no power to impose any

other lesser sentence.22

Case:

1. Krishnan v. State23: The acts of all the accused need not be the same or identically

similar. All that is necessary is that they all must be actuated by the one and the same

common intention. The fact that two of them caused injuries at the back of their

victim and the injury at the head which proved to be fatal was caused by the third

19 Shamim Rahmani v. State of U.P., (1975) 4 SCC 65220 AIR 1975 SC 45521 AIR 1984 SC 45222 State v Savithri (1976) Cr LJ 37 (Mad).23 (2003) 7 SCC 56

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person, the two co-accused could not claim to be absolved of their liability for

murder.

2. Dhaneshwar Mahakud v. State of Orissa24: The injury caused to the deceased clearly

indicated the intention to eliminate him and also showed common intention on the

part of the accused. It was held that the mere fact that the change was framed under

Section 302 read with Section 149 and not read with Section 34, did not cause any

prejudice to the accused. Convictions under Section 302 read with Section 34 of the

Indian Penal Code, 1860 was permissible.

24 AIR 2006 SC 1727

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ANALYSIS

The case between Jagir Singh v. State of Punjab25 was first taken up in the Sessions

Court, where the Ld. Judge convicted Accused 1 and Accused 5 of the offences under

Section 302 and 201 read with Section 149 of the Indian Penal Code, 1860 and

sentenced them with death and 5 years of rigorous imprisonment. The accused then

appealed to the Hon’ble High Court, the Hon’ble High Court altered the convictions

of those under Section 302 and 201 read with Section 34 of the Indian Penal Code and

confirmed sentences. After which the accused 1 and 5 appealed to the Supreme Court

of India, where the Judgment was delivered by Justice R.S. Bachawat, who critically

analysed all the facts and circumstances of the case and relied on previous precedents

to deliver the appropriate judgment for the aforementioned case.

Justice R.S. Bachawat acceded with the judgment pronounced by the Hon’ble High

Court. In the present case the charge against the six accused including the two

appellants was that they were members of an unlawful assembly whose common

objective was to commit the murder of Tarlok Singh, i.e. the deceased.

The contention made by the appellants is that there were six named accused charged

with section 302 read with Section 34 of the Indian Penal Code, 1860 and the

evidence is also directed to establish that the said six persons have taken part in this

calamitous murder, but the question who gave the fatal blow is abstruse. The one fact

that is clear in the present case is that Accused 1 and 5 participated in the offence with

four other unknown culprits. Though six named persons were charged with the

offence, there was a mistake in the identity of three of the accused and with regard to

another accused, the benefit of the doubt was given and no independent corroboration

was available. Accused 1 and 5 shared the common intention with four other persons

whose identity has not been established. The question raised is cleared by the dictum

of Justice R.S. Bachawat even after relying on the judgment delivered by the Supreme

Court in the case of Bharwad Mepa Dana v. State of Bombay26; though it is not

known which particular person or persons gave the fatal blow it is clear that the

murder was committed by six culprits including accused 1 and 5 in furtherance to

25 AIR 1968 SC 4326 (1960) 2 SCR 172

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common intention of all and each is liable for the murder as though it had been

committed by him alone.

CONCLUSION

I agree with the judgment pronounced by the Hon’ble Supreme Court pronounced by

Justice R.S. Bachawat, who has analysed the facts, circumstances, the present laws

and the precedents set by the Apex Court and then delivered this congruous judgment.

Six named persons were charged with the offence, there was a mistake in the identity

of three of the accused and with regard to another accused, and the benefit of doubt

was given as no independent corroboration was available. Accused 1 and 5 were two

of the six culprits who participated in the attack. The murder was committed by six

culprits including accused 1 and 5 in furtherance of the common intention of all.

Accused 1 and 5 shared the common intention with the four other culprits whose

identity has not been established. Though it is not known which particular person or

persons gave the fatal blow it is clear that the murder was committed by six culprits

including accused 1 and 5 in furtherance of the common intention of all and each of

them is liable for the murder as though it had been committed by him alone.

Taking into consideration the manner and method of murder of Tarlok Singh,

(deceased) by the appellants and their four companions as a whole from start to the

end, the appellants, about whose identity there is no manner of doubt whatsoever,

cannot escape the consequences of the act of all the six persons merely because in the

case of three of those who have been acquitted the learned Judge has not been

satisfied as to their identity and the fourth he has acquitted on a consideration that as

no corroboration is available as to him of the witnesses he may be given the benefit of

doubt. The matter might have been different if the learned Judge had disbelieved the

witnesses with regard to those four persons, but this he has not done.

Accused 1 and 5 were rightly convicted of the offence under s. 302 read with s. 34 of

the Indian Penal Code. The murder was ruthless and cold-blooded. There are no

extenuating circumstances. They were rightly sentenced to death. They were also

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rightly convicted and sentenced for the offence under s. 201 read with s. 34 of the

Indian Penal Code.

Section 34 of the Indian Penal Code is intended to meet cases in which it may be

difficult to distinguish between the acts of the individual members of a party or to

prove exactly what part was taken by each of them in furtherance of the common

intention of all. The reason why all are deemed guilty in such cases is that the

presence of accomplices gives encouragement, support and protection to the person

actually committing an act. Whereas, Section 149 of the Indian Penal Code is

intended with the objective that if an offence is committed by any member of an

unlawful assembly in prosecution of the common object of that assembly, or such as

the members of that assembly knew to be likely to be committed in prosecution of

that object, every person who at that time of the committing of that offence, is a

member of the same assembly is guilty of that offence.

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BIBLIOGRAPHY

BOOKS:

J. Chandrachud, Y K and Manohar VR, Indian Penal Code- Ratanlal & Dhirajlal 31st

edition 2007

Manohar, V R, Indian penal Code-Ratanlal & Dhirajlal 33rd edition 2010

Pillai, PSA Criminal Law, KI Vibhute 10th edition Reprint 2012

REFERENCE TO INTERNET:

www.scconline.com

www.manupatra.com

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