minal 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
JG Sethi Naunit Lal with him for the appellant
1204 Gopal Singh and P G Gokhale for the respondent
January 25
The Judgment of the Court was delivered by IMAM J
This appeal by Nanak Chand comes by special leave against the judgment of the Punjab 1 High Court
The appellant was convicted by the 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 Pm at the shop of Vas Dev P W 2
It is alleged that the appellant along with others assaulted Sadhu Ram
The appellant was armed with a takwa
Numerous injuries were found on the person of Sadhu Ram
According to the doctor who held the postmortem 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 by any other person with a takwa
According to the Medical evidence injuries 1 3 and 4 individually 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 accordingly found the appellant and three others guilty under section 302 read with section 34 of the Indian Penal Code
He acquitted the other three accussed 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 30234 to section 323 Indian Penal Code
it held that the provisions of section 34 of the Indian Penal Code did not apply
1205 On behalf of the appellant questions of law and questions of fact were urged
It will be unnecessary to deal with the questions of fact if the argument on points of law is accepted
The principal question of law to be considered is as to whether the appellant could legally be convicted for murder 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 302149 of the Indian Penal Code he could not be convicted 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 vs Emperor1 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 circumstances of the present case
Off behalf of the Prosecution however it was urged that section 149 did not create any offence at all and therefore no separate 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 Cal 197 1206 It is necessary therefore to examine the provisions of section 149 of the Indian Penal Code and consider as to whether this section creates a specific offence
Section 149 of the Indian Penal Code is to be found in Chapter VIII of that Code which deals with offences against the public tranquillity
Section 149 of the Indian Penal Code reads 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 the time of the committing of that offence is a member of the same assembly is guilty of that offence
This section postulates that an offence is committed by a member of an unlawful assembly in prosecution of the common object of that assembly or such as a member of the assembly knew to be likely to be committed in 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 commission of the offence was guilty of that offence
Under this section a person who is a member of an unlawful assembly is made guilty of the offence committed by another member of the same assembly in the circumstances mentioned in the section although he had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly
Without the provisions 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 accused are acquitted of riot and the charge for being members of an unlawful assembly fails there can be no conviction of any one of them for an offence which he had not himself committed
Similarly under section 150 of the Indian Penal Code a specific offence is created
Under this section a person need not 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 1207 a member of the unlawful assembly in the circumstances mentioned in the section
Sections 149 and 150 of the Indian Penal Code are not the only sections in that Code which create a specific offence
Section 471 of the Indian Penal Code makes it an offence to fraudulently or dishonestly use as genuine any document 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 fabricating 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 Prosecution 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 the act bad been done by him alone
This section does not create any specific offence
As was pointed out by Lord Sumner in Barendra Kumar Ghosh vs Emperor1  a criminal act  means that 1 Cal 197 1208 unity of criminal behaviour which results in something for which an individual would be punishable if it were all done by himself alone that is in a criminal offence
There is a clear distinction between the provisions of sections 34 and 149 of the Indian Penal Code and the two sections are not to be confused
The principal element in section 34 of the Indian Penal Code is the common intention to commit a crime
In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime
In such a situation section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone  There is no question of common intention in 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 unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled
Thus if the offence committed by that person is in prosecution 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 commission of that offence
In Barendra Kumar Ghosh vs Emperor1 Lord Sumner dealt with the argument that if section 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court then sections 114 and 149 of that Code would be otiose
In the opinion of Lord Sumner however section 149 is certainly not otiose for in any case it created a specific offence
It postulated an assembly of five or more persons having a common object as named in section 141 of the Indian Penal Code and then the commission of an offence by one member of it in prosecution of that object and he referred to Queen vs Sabid Ali and 1 Cal 197 1209 Others1
He pointed out that there was a difference between object and intention for although the object may be common the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in respect that they are all unlawful while the element of participation in action which is the leading feature of section 34 was replaced 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 conceding that may be so the observations of a Judge of such eminence must carry weight particularly 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 before 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 vs Emperor2 Reazuddi and Others vs King Emperor3 and Emperor vs Madan Mandal and Others  
These decisions support the contention that it will be illegal to convict an accused of the substantive offence under a section 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 Theetkumalai Gounder and Others vs King Emperor5 and the case Queen Empress vs Bisheshar and Others6
The decision of the Madras High Court was given in April 1924 and reliance was placed upon the decision of the Allahabad 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 before it the decision of the Privy Council
It is impossible to say what view might have been expressed 1 1873 20 WR Cr 52 Cal
3 1961 6 OWN 984 Cal
5 Mad 7466 All
1210 by that court if the Privy Council s judgment in the aforesaid case had been available to the court
The view of the Calcutta High Court had been noticed and it appears that a decision of the Madras High Court in Taikkottathil Kunheen1 was to the effect that section 149 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 rejudiced 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 in the Allahabad case that section 149 created no offence but was like section 34 merely declaratory of a principle of the common law and its object was to make it clear that an accused who comes within that section 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 omission 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 is accused there shall be a separate charge
They did not agree with the general statement in Reazuddi s case2 that it is settled law that when a person is charged by implication under section 149 he cannot be convicted of the substantive offence
A charge for a substantive offence under section 302 or section 325 of the Indian Penal Code etc
is for a distinct and separate offence from that under section 1 1928 18 LW 946
2 1901 1211 302 read with section 149 or section 325 read with section 149 etc
and to that extent the Madras view is incorrect
It was urged by reference to section 40 of the Indian Penal Code that section 149 cannot be regarded as creating an offence  because it does not itself provide for a punishment
Section 149 creates an offence 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 members to the punishment prescribed for that offence and the relative sentence
Reliance was also placed upon the decision of the Patna High Court in Ramasray Ahir vs King Emperor1 as well as the decision of the Allahabad High Court in Sheo Ram and Others vs Emperor1
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 whether 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 cases referred to on behalf 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 vs State of Punjab1 a conviction under section 302 read with see 1 Patna 484
2 AIR 1948 All 162 3  155 1212 tion 149 could be converted into a conviction under section 30234 which the trial Court did
There could be no valid objection therefore to converting a conviction under section 30234 into one under section 302 which the High Court did  This argument is unacceptable
The High Court clearly found that section 34 was not applicable to the facts of the case and acquitted the other accused under section 30234 that is to say the other accused were wrongly convicted 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 although 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 provisions 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 bad caused the injuries to the deceased with takwa was established by evidence then there could be no doubt that the offence of murder bad 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 1213 Reference was also made to the provisions of section 537 of that Code
Section 535 does permit
a court of appeal or revision to set aside the finding or sentence if in its opinion the non framing of a charge has resulted in a failure of justice
Section 537 also permits a court of appeal or revision to set aside a finding or sentence if any error omission or irregularity in the charge has in fact occasioned a failure of justice
The explanation to the section no doubt directs that the court shall have regard to the fact that the objection could and should have been raised at an earlier 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 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 defence by the absence of a charge under section 302 of the Indian Penal Code
By framing a charge under section 302 read with section 149 of the Indian Penal Code against the appellant the Court indicated that it was not charging the appellant with the offence of murder and to convict 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 have considered it unnecessary to concentrate on that part of the prosecution ease Attention has been 1214 drawn to the Medical evidence
With reference to injury No I the doctor stated that the wounds were not very clean cut
It is further pointed out that the other incised injuries on the head were bone deep
The bone however had not been out
Injuries on the head although inflicted by a blunt weapon may sometimes assume the characteristics of an incised wound
Reference was made to Glasgow on Medical Jurisprudence 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 PW 2 bad 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 PW 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
Having regard to the view expressed on the question of law it is unnecessary to refer to the arguments on the facts
The appeal is accordingly allowed and the conviction 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


Summary:
Section 34 of the Indian Penal Code is merely explanatory
It does not create any specific offence
Under this section several persons must be actuated by a common intention and when in further 1 AIR 1936 Lah
1202 ance of that common intention a criminal act is done by them each of them is liable for that act as if the act had been done by him alone
There is a clear distinction between the provisions of section 34 and section 149 of the Indian Penal Code and the two sections are not to be confused
The principal element in section 34 of the Indian Penal Code is the common intention to commit a crime
In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime
In such a situation section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone
There is no question of common intention in 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 the other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled
Thus if the offence committed by that person is in prosecution 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 commission of that offence
There is a difference between object and intention for although the object may be common the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in one respect namely that they are all unlawful while the element of participation in action which is the leading feature of section 34 is replaced in section 149 by membership of the assembly at the time of the committing of the offence
A charge for a substantive offence under section 302 or section 325 of the Indian Penal Code etc
is for a distinct and separate offence from that under section 302 read with section 149 or section 325 read with section 149 etc
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
There was no room for the application of section 236 of the Code of Criminal Procedure to the facts of the present case
The provisions of section 236 of the Code of Criminal Procedure 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 the present case there was no doubt about the facts and if the allegation against the appellant that he had caused the injuries to the deceeased with takwa was established by evidence then there could be no doubt that the offence of murder had been committed 1203 In the present case there was no question of any error omission or irregularity in the charge within the meaning of section 537 of the Code of Criminal Procedure because no charge under section 302 of the Indian Penal Code was in fact framed
There was an illegality in the present case and not an irregularity which was curable by the provisions of sections 535 and 537 of the Code of Criminal Procedure
Assuming however that there was merely an irregularity which was curable the irregularity in the circumstances of the case was not curable because the appellant was misled in his defence by the absence of a charge under section 302 of the Indian Penal Code
By framing a charge under section 302 read with section 149 Indian Penal Code against the appellant the Court indicated that it was not charging the appellant with the offence of murder and to convict 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 have considered it unnecessary to concentrate on that part of the prosecution ease
Barendra Kumar Ghosh vs Emperor  1925 ILR 52 Cal 197 Queen vs Sabid Ali and others  1873 20 WR Cr 5 Panchu Das vs Emperor  Cal
698 Beazuddi and Others vs King Emperor 1901  Emperor vs Madan Mandal and Others  Cal 662 Theethumalai Gounder and Others vs King Emperor 1924 ILR  Queen Empress vs Bisheshar and Others  All 645 Taikkottathil Kunheen  1923 18 LW 946 Bamasray Ahir vs King Emperor  Patna 484 Sheo Ram and Others vs Emperor AIR 1948 All 162 and Karnail Singh and another vs State of Punjab   referred to