# Dalip Singh v. State of

- **Citation:** [1954] 1 S.C.R. 904
- **Court:** Supreme Court of India
- **Decided:** 1953-06-09
- **Case number:** Criminal Appeal No. 64 of 1953
- **Bench:** Bhagwati, Jagannadhadas, Venkatarama Ayyar Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dalip-singh-v-state-of-281
- **Pages:** 9

## Headnote

Indian Penal Code (Act XLV of 1860), ss. 34 and 149-Scop<"
of-Charge under s. 302 read with s. 149-Conviction under s. 302'
1·ead tvith s. 34-Whether valid.
It was contended that the conviction of the appellants under
s. 302, Indian Penal Code, read with s. 34 was illegal when they
had been charged only under s. 302 read with s. 149
because
the
scope of s. 149 was different from that of s. 34,
that while what
s. 149 required was proof of a common object, it would be necessary under s. 34 to establish a common intention and that
there-
. fore when the charge against the accused was under s. 149, it could'
not be conv~rted in appeal into one under s. 34.
Held, that it is
true
that there
is substantial
difference
between the
two sections
but they also to
some extent overlap
an<l it is a question to be determined on the facts of each case
\vhether the charge under s. 149 overlaps the ground covered by
s. 34.
If the common object which is the subject.matter of the
charge under s. 149 docs not necessarily involve a common inten·
tion, then
the
substitution of s. 34
for s. 149 might
result in
prejudice to the accused and ought not therefore to be permitted.
But if the facts
to be proved and the evidence to be adduced with:
reference to the charge under s. 149 would be the same if
the·
charge were under s. 34, then the failure to charge
the accused·
under s. 34 could not result in any prejudice and in such cases the
. substitution of s. 34 for s. 149 must be held to be a formal matter ..
There is no such broad proposition of law that there can be no·
recourse to s. 34 when the charge is only under s. 149.
Whether such recourse can he had or not must depend
facts of each case.
The facts of the present case \Varranted such a recourse.
Dalip Singh v.
State of
Punjab (A.LR. 1953
S.C.
Barendra Kumar Ghosh v.
EmPeror (I.LR.
52 Cal.
197
Lachman Singh v. The State ([1952] S.C.R. 839) referred to.
on the364),.
P.C.),.
CruMINAL APPELLATE
JuR1so1cr10N :
Criminal Appeal No. 64 of 1953.
Appeal by special leave from the Judgment and
Order dated the 9th June, 1953, of the High Court of
Judicature for the State of Punjab at Simla (Falshaw
and Kapur JJ.) in Criminal Appeal No. 60 of 1953
S.C.R.
SUPREME COURT REPORTS
905
arising out of the Judgment and Order dated the 15th
December, 1952,
of
the
Court of
the Additional
Sessions Judge, Ferozepore, in Sessions Case No. 50 of
1952 and Trial No. 57 of 1952.
fai Copa! Sethi (R. L. Kohli, with
him) for the
appellants.
.Porus A. Mehta for the respondent.
1954.
January 29.
The Judgment of the Court was
delivered by
VENKATARAMA
AYYAR J.-This is an appeal by
special lea\·e
by
Karnaii Singh and Malkiat Singh
against the
judgment of
the High Court of Punjab
confirming their conviction by the Additional Sessions
J i!dge of F erozepore under section 302, Indian Penal
Code, and the sentence of death passed on them.
The facts as found by the courts below are as
follows: There had been long standing enmity between
the appellants
and their party on the one hand and
the
deceased
Gurbaksh Singh and his party on
the
other, resulting in
a number ot crimes,
~nd proceedings in court.
On the 27th January, 1952, at about
sunset time, Gurbaksh Singh was sitting
inside his
house
on
the sabath
and his sister
Mst. Bholan
was
.in
the kitchen.
Then the a]cpellants and . their
men came to the place armed with rin~s, got on the
roof of the house of Gurbaksh Singh and challenged
him
to
come
out.
Gurbaksh
Singh
and
Mst.
Bholan went to the kotha and bolted the door from inside. Then the appellants and their men made holes in
the roof with spades, ignited inflammable materials,
such as dry twigs, and threw them inside the kotha
through the holes and set fire to the building.
Both
Gurbaksh Singh and Mst. Bholan were caught inside
and burnt to death.
A brother of Gurbaksh Singh
called Dev,
who
had been at that time away, was,
according to the prosecution, seized when he subsequently
turned
up, thrown into the flames and was
also burnt to de

## Text

1954
Ja11uary 29.
904
SUPREME COURT REPORTS
[1954J
KARNAL SINGH AND ANOTHER
f),
THE STATE OF PUNJAB.
[BHAGWATI, JAGANNADHADAS and
VENKATARAMA AYYAR JJ.J
Indian Penal Code (Act XLV of 1860), ss. 34 and 149-Scop<"
of-Charge under s. 302 read with s. 149-Conviction under s. 302'
1·ead tvith s. 34-Whether valid.
It was contended that the conviction of the appellants under
s. 302, Indian Penal Code, read with s. 34 was illegal when they
had been charged only under s. 302 read with s. 149
because
the
scope of s. 149 was different from that of s. 34,
that while what
s. 149 required was proof of a common object, it would be necessary under s. 34 to establish a common intention and that
there-
. fore when the charge against the accused was under s. 149, it could'
not be conv~rted in appeal into one under s. 34.
Held, that it is
true
that there
is substantial
difference
between the
two sections
but they also to
some extent overlap
an<l it is a question to be determined on the facts of each case
\vhether the charge under s. 149 overlaps the ground covered by
s. 34.
If the common object which is the subject.matter of the
charge under s. 149 docs not necessarily involve a common inten·
tion, then
the
substitution of s. 34
for s. 149 might
result in
prejudice to the accused and ought not therefore to be permitted.
But if the facts
to be proved and the evidence to be adduced with:
reference to the charge under s. 149 would be the same if
the·
charge were under s. 34, then the failure to charge
the accused·
under s. 34 could not result in any prejudice and in such cases the
. substitution of s. 34 for s. 149 must be held to be a formal matter ..
There is no such broad proposition of law that there can be no·
recourse to s. 34 when the charge is only under s. 149.
Whether such recourse can he had or not must depend
facts of each case.
The facts of the present case \Varranted such a recourse.
Dalip Singh v.
State of
Punjab (A.LR. 1953
S.C.
Barendra Kumar Ghosh v.
EmPeror (I.LR.
52 Cal.
197
Lachman Singh v. The State ([1952] S.C.R. 839) referred to.
on the364),.
P.C.),.
CruMINAL APPELLATE
JuR1so1cr10N :
Criminal Appeal No. 64 of 1953.
Appeal by special leave from the Judgment and
Order dated the 9th June, 1953, of the High Court of
Judicature for the State of Punjab at Simla (Falshaw
and Kapur JJ.) in Criminal Appeal No. 60 of 1953
S.C.R.
SUPREME COURT REPORTS
905
arising out of the Judgment and Order dated the 15th
December, 1952,
of
the
Court of
the Additional
Sessions Judge, Ferozepore, in Sessions Case No. 50 of
1952 and Trial No. 57 of 1952.
fai Copa! Sethi (R. L. Kohli, with
him) for the
appellants.
.Porus A. Mehta for the respondent.
1954.
January 29.
The Judgment of the Court was
delivered by
VENKATARAMA
AYYAR J.-This is an appeal by
special lea\·e
by
Karnaii Singh and Malkiat Singh
against the
judgment of
the High Court of Punjab
confirming their conviction by the Additional Sessions
J i!dge of F erozepore under section 302, Indian Penal
Code, and the sentence of death passed on them.
The facts as found by the courts below are as
follows: There had been long standing enmity between
the appellants
and their party on the one hand and
the
deceased
Gurbaksh Singh and his party on
the
other, resulting in
a number ot crimes,
~nd proceedings in court.
On the 27th January, 1952, at about
sunset time, Gurbaksh Singh was sitting
inside his
house
on
the sabath
and his sister
Mst. Bholan
was
.in
the kitchen.
Then the a]cpellants and . their
men came to the place armed with rin~s, got on the
roof of the house of Gurbaksh Singh and challenged
him
to
come
out.
Gurbaksh
Singh
and
Mst.
Bholan went to the kotha and bolted the door from inside. Then the appellants and their men made holes in
the roof with spades, ignited inflammable materials,
such as dry twigs, and threw them inside the kotha
through the holes and set fire to the building.
Both
Gurbaksh Singh and Mst. Bholan were caught inside
and burnt to death.
A brother of Gurbaksh Singh
called Dev,
who
had been at that time away, was,
according to the prosecution, seized when he subsequently
turned
up, thrown into the flames and was
also burnt to death.
Meantime one Gurnam Singh,
P. W. 13, a cousin of Gurbaksh Singh and his neighbour, managed to slip out of the village and reported
the occurrence at the police station at Nihal Singhwala,
1954
Karnail Singk
a1td Another
v.
The State of
Punjab.
·V mkatarama
Ayyar ] •
1954
,K arnail Singh
and Another
v.
The State of
Punjflb.
iV enkatarama
Ayyar J.
906
SUPREME COURT REPORTS
[1954J
a place eight miles away (vide Exhibit PQ). It was then
10-30 P.M.
On receipt of this information, the police
sub-inspector, P.W. 25, went to the village with a posse
of constables
and with Gurnam Singh.
He found the
house
mostly burnt
and recovered therefrom
the
charred remains of three dead bodies and they were
identified as those of Gurbaksh, Dev and Mst. Bholan.
The appellant Kamai! Singh was actually seen at that
place and arrested on the spot.
Malkiat Singh who
had been mentioned in Exhibit PQ as one
of the
pamc1pants
was found
in his
house with gunshot
wounds
and was
also arrested.
Eventually eight
persons, including the appellants, were charged
under
section 148,
Indian Penal Code, for forming an unlawful assembly with the object of burning the house oi
Gurbaksh Singh and murdering
him,
Der and
Mst.
Bholan, and under section 302 read with section
149
for
their
murder.
The Additional Sessions Judge,
F erozepore, held that the case had not been established beyond doubt as against two of the accused and he
accordingly acquitted
them.
He convicted
the six
others including the appellants under section 148 and
section 302 read with section
149. and sentenced them
to
death.
On appeal,
the
learned Judges of the
Punjab High Court held that "although there can be
no
doubt whatever that the occurrence took place
more or less on the lines described by the prosecution
witnesses, and the primary object of the culprits must
have been
to murde" Gurbaksh Singh, deceased, in
consequence of the bitter enmity. between him and the
main body of the accused" and that "although it may
very well be true that all the six appellants took part
in
this occurrence".
the
evidence against the four
accused other than the appellants was insufficient to
to sustain their conviction, as it consisted of the testimony of persons who were at a distance of 40 to 50
feet from the scene
of occurrence and who claimed to
identify
the particular
accused
only by their voice.
They were accordingly acquitted.
Then dealing with
the case against the two appellants they observed that
as against
t]:iem, there was evidence of the two eyewitnesses, Gurnam Singh (P. W. 13) and Maghar Singh
'
S.C.R ..
SUPREME COURT REPORTS
(P. W. 14), that Maghar Singh was not a reliable witness,
that ·nothing could be urged against the evidence
of Gurnam Singh, that even so it would be unsafe to
base a conviction on
his evidence alone, but that the
presence
of Karnail Singh at the spot and the existence
of. wounds on the person of Malkiat Singh afforded sufficient corroboration
of the evidence of Gurnam
Singh.
They
accordingly
confirmed the conviction
and sentence as against the appellants. As four of the
accused were acquitted in appeal, the learned Judges
set aside
the conviction of the appell:mts under section
149
and
substituted section 34, Indian Penal Code,
therefor.
Two contentions: have been urged on behalf of the
appellants, that the evidence which had been accepted
by the learned Judges
as reliable was insufficient to
establish the guilt of the appellants and that their
conviction under section 34 was bad as no charge had
been framed against them under that _section .. On the
first point, the argument of
the learned counsel for the
appellants
was
that
having held that the only eye
witness whose evidence was worthy of credence was
P.W. 13, and that even his evidence could not be acted
upon unless it was corroborated, the
learned Judges
were in error in holding that there was. such corroboration
against
the
appellants.
The
circumstance
'relied
on
by the. court below as
corroborating the
evidence of '[' .W. 13 was that the appellants were
proved to have been present at the scene of occurrence.
and there was no satisfactory explanation from .them
therefor.
As regards Karnail Singh, the police subinspector, P.W. 25, actually found him emerging out
of the burning house with a spear in his hand. He
had
injuries on his person and his pyjama was bloodstained.
He was arrested on the spot and the spear
and the pyjama were seized and marked as Exhibits
P-12 and P-20. As for Malkiat Singh, his name was
mentioned in the first information report, Exhibit. PO,
and P.W. 25 went to his house and found him with
gunshot wounds and arrested him.
In the statement
given by Karnail Singh under section
342, Criminal
Procedure Code, he stated that when he saw the house
1954
Kamai[ Singh
and Aflf.Jthrr
v.
The Statt _of
Punjab.
V enkatarama
AyyarJ.
1954
Jl arnail Singh
and Anothtr
v.
The State of
Punjab.
V rnkatarama
AyyarJ.
908
SUPREME COURT REPORTS
[1954}
of Gurnam
Singh
on fire, he went there and was
assaulted by culprits, that Malkiat Singh came there to
help him,
that when they were grappling with the
culprits he was attacked and Malkiat Singh received
a
gunshot and thereafter they went away to their houses.
The statement of Malkiat Singh also was on. similar
lines.
There was no evidence that any other person
or persons were responsible for the acts and the learned
Judges therefore rejected
as untrue the explanation of
the appellants that "they received these injuries while
intervening
against
some
unknown assailants
on
behalf of their bitterest enemy."
It
is contended
for the appellants that the mere
. presence of Kamai! Singh at the place of occurrence
would
in itself mean nothing and that it would
amount
to
corroboration
only if some further act
incriminatory in character was proved.
With reference
to Malkiat Singh, it was argued that the existence of
gunshot wounds would be inconclusive as there was
no evidence as to how· they were caused.
It was contended that the
theory
of the learned Judges that
Gurbaksh
Singh might
himself
have
shot at him
through the hole while he was on the roof was wholly
unsupported
by evidence and opposed to the medical
evidence in the case as to the nature of the wounds
and
to the fact that no gun was recovered from the'
house,
and
that there was accordingly nothing to
connect
Malkiat Singh with the incident at the house
of Gurbaksh Singh.
With reference to the statements
of the accused
admitting their presence at the place
but explaining that some culprits had set fire to the
house
and
that they went there thereafter, it was
argued
that if the statements were to be taken into
considr.ration
they must be taken as a whole and that
it was not proper to accept the incriminating portion
and reject
the
exculpatory portion
thereof
and
the
observations of this court in Hanumant v.
Stat~ of
Madhya Pradesh('), at page 1111 were relied on in
,
support
of
this
position.
The result
according
to
the appellants
is that there
was not sufficient
(1) [19521s.c.R.1091.
S.C.R.
SUPREME COURT REPORTS
909
corroboration of the evidence of P. W. 13 to support
their conviction.
It is necessary in view of this contention to examine
the evidence in order to see what corroboration there
is against
each of the appellants. So far
as Kamai!
Singh is concerned,
his presence, at the scene of occurrence
under
the circumstances disclosed in
the evidence
is
sufficient
to corroborate
the
evidence of
P.W. 13.
It
should be remembered that
Gurnam
Singh is not an approver. He is a witness against whom
the learned Judges had nothing to say and if they
required corroboration of his evidence it was
because
he was a relation of the deceased and it was considered not safe to base a conviction on his sole testimony.
The corroboration that is required in such cases is not
what
would be necessary to support the evidence of
an approver but what would be sufficient to "lend
assurance
to
the evidence
before
them, and satisfy
them that the particular persons were really concerned
in the murder of the deceased." (Vide Lachhman Singh
v. State(•)).
Kamai! Singh was arrested on the spot
with a spear and a bloodstained pyjama, and these are
pieces of evidence which would support the inference
that he was concerned in the crime.
The case of Malkiat Singh presents greater difficulty.
He was arrested in his house with gunshot wounds on
his person and unless
it could be established that they
were received at the scene of occurrence that would
not
be sufficient
to connect him with the crime. We
agree that
the
mention of his name in Exhibit PQ
cannot be held to be sufficient corroboration because
that is only the statement
of P. W. 13 at an earlier
stage and
it
is
not
independent evidence. With
reference
to
the statement
of the accused
under
section 342, Criminal
Procedure Code, it
is
true
that if it . is sought
to be used as an admission it
must
be
read
as a whole; but where it consists
of distinct
and separate matters, there
is
no reason
~
why an
admission
contained
in one matter should
not
be
relied
on
without reference
to the statements
relating
to
other
matters.
In this case the
(1) [1952] S.C.R. 839 at p. 845.
1954
K arnail Singh
a11d Another
v.
The Stalt of
Pu,Yab.
V enkatarama
AyJ<lr J.
1954
K arnail Singh
and :4.nothe.r
v.
Tht State of
Purrjab.
V tnkatar(lma
A;yar J.
910
SUPREME COURT REPORTS
[19541
admiss.ion of the appellant that he was present at or
near the scene of occurrence is distinct and separate
from
his explanation
as
tc how he received
the
1111uries.
The learned fodges having disbelieved, in our
opinion rightly, the statement of the appellant that
the house was burnt
by sorr.e
unknown enemies of
Gurbaksh Singh and that it was they who murdered
him, we do not see any objection to the statement of
the appellant that he was present at the scene of the
occurrence from being used as an admission. Another
piece of corroboration which the learned Judges relied
on was that
in their view
the gunshot wounds must
have been received .by Malkiat Singh at the house of
Gurbaksh Singh.
They gave their finding on this point
in
the
alternative.
They observed that the injuries
might have been caused by Gurbaksh Singh firing from
inside the house.
But of this there is no evidence and
the medical evidence is in fact opposed to it and as
already stated, no gun was recovered from the house
of the deceased. In the alternative, they observed that
the injuries might have been caused by a shot from
one ot his own men.
This view is supported by the
evidence of P. W. 14 who deposed that while the
incidents were in progress Malkiat Singh stated that
he had been shot by one of his own men and then left
the
place.
It is argued
·for the appellant that as the
learned Judges had declined to act on the evidence of
P. W. 14, the alternative suggestion must be ruled out
as unsupported by evidence. What all the learned
Judges
remarked
about P.W. 14 was that it was
"impossible
to
place
any
very great reliance on
Maghar . Singh's evidence". But then they also expressly referred to his evidence on this point (Vide page 61
of the record) and accepted it as one of the possible
alternatives (Vide page 65). And on their finding that
the injuries must have been received
at the place
of
occurrence
and
the theory that Gurbaksh Singh fired
the shot being negatived, there is no difficulty in hold~
ing that they were prepared to ac_cept the evidence of
P. W. 14 on this point.
Thus there are ample materials
for holding that the gunshot wounds were received
by Malkiat Singh in the house of Gurbaksh Singh and
'
S.C.R
SUPREME COURT REPORTS
911
that is sufficient
corroboration
of
the evidence of
P. W. 13.
In
this
view we must overrule the first
contention.
Then the next question is w'.:ether the conviction of
the appellant under section 302 read with section 34,
when they had been charged o.Jy under section 302
read with section 149, was illegal. The contention of the
appellants is
that the scope of section 149 is differe:it
from that 01 section 34, that while what section 149
requires is proof of a common object,
it would be
necessary
ilnder
section
34
to establish a common
intention and that therefore when the charge against
the
accused
is
under
section
149 it cannot be
converted
in appeal into one under section 34. The
following observations of this court in Dalip Singh v.
State of Punjab(') were relied on in support of this
position:-
"Nor is it possible
in
chi's case to have recourse
to section 34 because the appellants have not been
charged with that even in the alternative and the
common intention required
by section
34
and
the
common object required by section
149
a1 c far [ram
being the same thing."
It is true that there is substantial difference between
the two sections but as observed by Lord Sumner in
Barendra Kumar Ghosh v. Emperor('), they also to
some extent overlap and it is a question to be determined on the facts of each case whether the charge
under
section
149
overlaps
the ground covered by
section 34.
If the common object which is the subjectmatter
of
the charge
under section 149
does
not
necessarily involve a common intention, then the substitution of section 34 for section
149 might result in
prejudice to the accused and ought not therefore to be
permitted.
But if the facts to be proved and the evidence • to
be adduced with reference to the charge
under section
149 would be the same if the charge
were under section 34, then the failure to charge the
accused
under section
34
could not result in any
(x) A.I.R. 1953 S.C. 364 at p. 3f,6.
(•) I.L.R.52 Cal. 197 (P.C.).
7-96 S.C. India/59 .
•
1954
Karnaii 5inlllt
a.a Aul;.lf
••
Till ~t.u (if
P..jo/J.
1954
Kamail Sing!i
ona AtuJt:ier
v.
Tht StaU of
Pu.if ab.
V 1nkatarama
Ayyar J.
912
SUPREME COURT REPORTS
[19541
prejudice and in such cases the substitution of
section
34 for section 149 must be held to be a formal matter.
We do not read
the observations
in Dalip Singh v.
State of Punjab(') as an authority for the broad propmition that
in
law there could be no recourse to
section 34 when the charge is only under section 149.
Whether such recourse can be had or not must depend
on the facts of each case.
This is in accord with the
view taken by this court in Lachhman Singh v. The
State(')
where the substitution of section 34 for
section 149 was upheld on the ground that the facts were
such "that the accused
could
have been charged
alternatively
either
under
section
302 read
with
section 149, or under section 302 read with section 34."
Examining the record from this point of view the
findings are that
both the appellants who had long
standing enmity with Gurbaksh Singh, got on the roof
of his house and set fire to it,
with the deceased and
Mst. Bholan couped up within.
If it was their object
under section 149
to
burn the house
and cause the
death of Gurbaksh Singh, that was also their intention
under section 34.
On the facts of this case there can
be no difference between
the object and the intentio11
with which the offences were committed.
Our attention was also drawn to the wording of the charge
whicl, while mentioning section 149 also sets
out that
in prosecution
of the common object the accused
intentmnally
set
fire
to
the house
and murdered
GurbaKsh Singh and Mst.
Bholan.
We are satisfied
that
the substitution of section 34 in the place of
section 149
in
the
charge
by the court below has
resulted in no prejudice to the appellant and it is there
fore not open to objection.
The appeal fails and is dismissed.
,
Appeal dismissed.
Agent for the appellants: Nau nit Lal.
Agent for the respondent: R. H. Dhebar.
(1) A.J.R. 1953 S.C. 364.
(2) [1952] S.G.R. 839.
•
•
'