Case: Karnail Singh and Anr Vs. The State of Punjab

2. The facts as found by the courts below are as follows: There had been longstanding 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 of crimes, and proceedings in court. On the 27th of 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 appellants and their men came to the place armed with rifles, got on the roof of the house of Gurbaksh Singh and challenged him to come out. Gurubaksh Singh and Mst. Bholan went into 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 buildings. 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, a place eight miles away (Vide Ex. PQ). It was thenP.M. On receipt of this information, the policeP. 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 Karnail Singh was actually seen at that place and arrested on the spot. Malkiat Singh who had been mentioned in Ex. PQ as one of the participants was found in his house with gunshot wounds and was also arrested.Eventually eight persons, including the appellants were charged under S. 148, I.P.C. for forming an unlawful assembly with the object of burning the house of Gurbaksh Singh and murdering him, Dev and Mst. Bholan, and under S. 302 read with S. 149 for their murder. The Additional Sessions Judge. Ferozepore, 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 S. 302 read with S. 149 and sentended 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 murder 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 sustain their conviction, as it consisted of the testimony of persons who were at a distance of 40 to 50 ft. 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 them, there was evidence of the twoGurnam Singh (P. W. 13) and Maghar Singh (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 appellants under S. 149 and substituted S. 34, I. P.C. therefor.

Reasoning:
5. 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 Kamail Singh in 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, AIR 1952 SC 167  at p. 169 (B)). Karnail 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.6. 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 Ex. 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 S. 342, Cr. P. C., 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 admission of the appellant that he was present at or near the scene of occurrence is distinct and separate from his explanation as to how he received the injuries. The learned Judges having disbelieved, in our opinion rightly, the statement of the appellant that the house was burnt by some 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 scence of the occurrence from being used as anall the learned Judges remarked about P. W. 14 was that it was "impossible to place any very great reliance on Maghar Singhs evidence." But then they also expressly referred to his evidence on this point (Vide p. 61 of the record) and accepted it as one of the possible alternatives (Vide p. 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 holding that they were prepared to accept 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 that is sufficient corroboration of the evidence of P. W. 13. In this view we must overrule the firstfollowing observations of this Court inDalip Singh v. State of Punjab, AIR 1953 SC 364  AT P. 366 (C) were relied on in support of this position :"Nor is it possible in this case to have recourse to S. 34 because the appellants have not been charged with that even in the alternative and the common intention required by S. 34 and the common object required by S. 149 are far from being the same thing."It is true that there is substantial difference between the two sections but as observed by Lord Summer inBarendra Kumar Ghosh v. Emperor, AIR 1925 PC 1  (D), they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under S. 149 overlaps the ground covered by S. 34. If the common object which is theof the charge under S. 149 does not necessarily involves a common intention, 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.We do not read the observations in AIR 1953 SC 364  (C) as an authority for the broad proposition that in law there could be no recourse to S. 34 when the charge is only under S. 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 AIR 1952 SC 167 (B), where the substitution of S. 34 for S. 149 was upheld on the ground that the facts were such"that the accused could have been charged alternatively either under S. 302 read with S. 149, or under S. 302 read with S. 34."8. Examining the record from this point of view, the finding are the both the appellants who had longstanding 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 S. 149 to burn the house and cause the death of Gurbaksh Singh, that was also their intention under S. 34.On the facts of this cases there can be no difference between the object and the intention with which the offences were committed. Out attention was also drawn to the wording of the charge which while mentioning S. 149 also sets out that in prosecution of the common object the accused intentionally set fire to the house and murdered Gurbaksh Singh and Mst. Bholan. We are satisfied that the substitution of S. 34 in the place of S. 149 in the charge by the court below has resulted in no prejudice to the appellant and it is therefore not open to objection.