SURAJ PAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is an appeal by special leave from the judgment of the High Court at Allahabad. The sole appellant before us has been convicted by the Sessions Court under Ss. 148, 307 and 302, Penal code, and sentenced to rigorous imprisonment for two and a half years under S. 148, to transportation for life under S. 307, and to death under S. 302. These convictions and sentences have been confirmed by the High Court. At the trial there were 19 other accused along with this appellant. All of them were convicted and sentenced by the trial court under various sections of the Indian Penal Code. On appeal ten out of them were acquitted by the High Court. In respect of the remaining nine besides this appellant, the convictions and sentences were partially modified. But this appeal is not concerned with them. The incident in the course of which these offends are said to have been committed took place in the evening of 4-11-1953, shortly before sunset in a village called Sonari in the district Fatehpur, Uttar Pradesh. During that incident two persons, Bisheshwar and Surajdin, are alleged to have received gun-shot wounds. Bisheshwar survived but Surajdin died on the spot. The back-ground for this incident was as follows:In the village of Sonari there were two factions between, whom there was prior history of enmity resulting in criminal prosecutions by each against the other. It may be broadly stated that the accused persons in the present case belong to one party and the prosecution witnesses as well as the deceased person belong to the other party. In the year 1946 there was rioting between them in which two of the present prosecution witnesses, were assaulted. This led to a criminal case against some of the present accused and others, in which they were convicted and sentenced, the members of the other party figuring therein as prosecution witnesses. Again, just five months prior to the present incident, there was another rioting in the village between these two groups. In that, one Ram Bharosey a member of the party of the present accused was killed. As a result 15 persons of the opposite-party (i.e. the party of the present prosecution witnesses) were prosecuted. By the date of this incident that case had been committed to the session but the sessions trial had not started. According to the prosecution case, the occasion for the incident, which concerns us, was that some of the present accused wanted to persuade or prevent a member of the opposite party by name, Bisheshwar-P. W. 2 in this case-from doing what is called 'pairavi' on behalf of the accused in that case, 'Pairavi' is said to be the active assistance in religion to Court proceedings which a friend or agent renders to a litigant) While, Bisheshwar, P. W. 2, and two others Bhurey Lal. P. W. 1, and Ram Saran, P. W. 3, were sitting in front of the house of Ram Saran on the evening of 4-1-1953, the present appellant along with the other accused are said to have turned up before them, lathies in hand. The appellant is said to have asked Bishwshwar to give up doing 'pairavis' in the then pending case on behalf of the accused therein. Bisheshwar having declined to do so, the appellant is said to have pulled out a pistol from his inner pocket and fired at him, as a result of which he fell down on the ground. P. Ws. 2 and 3 are said to have dragged him inside the house and chained the door from inside, run up the roof and raised an alarm, whereupon a number of persons of the other party are said to have come running up. One of the persons who so came running up was Surajdin who was cutting fodder at the house of Bhurey Lal, P. W. I. The appellant is said to have fired at him with the pistol. He fell down and died on the spot. Another person named Gaya Prasad is said to have received some minor lathi injuries. Accused party thereafter is said to have run away. First information of the report was lodged by Bhurey Lal, P. W. 1, near about 12 that very night at the police station which was about nine miles from the scene of the occurrence. The police came on the scene the next morning and the usual investigation followed. The police filed on 22-2-1953, a charge-sheet for offences under Ss. 147, 148. 323/149 and 307/149. The charge-sheet in so far as it was under S. 323/149 related presumably to some minor injuries said to have been received by Gaya Prasad, and in so far as it was under S. 307/149 related presumably to the gun-shot wounds received by Bisheshwar, P. W. 2. It may be noticed that the charge-sheet did not concern itself with any offence or offences alleged to have been committed, in bringing about the death of Surajdin by the firing of a pistol at him. It is on this charge-sheet that cognizance of the case was taken by the Magistrate and committal proceedings were started. It appears, however, that the complainant party finding that the police challan did not relate to the offence under S. 302, I.P.C. filed; on 2-5-1953, a private complaint, before the very Magistrate in whose Court the committal proceedings were by then pending. That complaint was filed by the same Bisheshwar, P. W. 1, who lodged the first information in this case on 5-1-1953. It sets out substantially the same facts. This complaint also was taken ' on the file of the Magistrate. The enquiry thereon was merged into the enquiry relating to the police challan case. The Magistrate eventually committed all the 20 accused to take their trial before the Sessions Judge by framing charges, under Ss. 147, 323/149, 307/149 and 302/149. There was a specific charge under S. 148, I. P. C. against Suraj Pal and Dharm Raj, the former for being armed with a pistol and the latter for being armed with a 'pharsa', at the time of the commission of the rioting. It is in respect of charges so traded by the committing Magistrate without any amendment or alteration that the accused were tried in the Sessions Court. It may be mentioned at this stage that the defence of the accused, apart from the general denial of their having anything to do with the incident and denials as to their having been present at the occurrence, was to the effect that it was the complainant's party including the deceased Surjdin who formed the unlawful assembly, with the common object of beating one Ram Pal of the village. This Ram Pal had appeared as a prosecution witness at the committal stage in the criminal proceedings by then pending against the present prosecution witnesses as accused. It was also their defence that it was one Ram Bhawan of that parry who, in the course of the incident, fired pistol shots in the air and also shot, later, Surajdin and brought about his death.

(2.) The learned Sessions Judge found all the accused guilty of the various offences as charged and sentenced them. On appeal the High Court considered the prosecution evidence with reference to three aspects. (1) How far the manner in which the prosecution alleged the incident to have taken place can be accepted; (2) How far the prosecution case regarding the presence and participation of the, various persons can be accepted; and (3) What offence can be said to have been made out as against each of them. On the first question the High Court accepted the view that the incident took place as alleged by the prosecution. With reference to the second, the High Court set out elaborately various reasons why the prosecution evidence in so far as it implicates particular individuals, could not be accepted at its face value and required to be carefully scrutinised. With reference to certain criteria which it was considered necessary and right to adopt for purposes of scrutiny, the High Court held that the convictions of ten out of the 20 persons before it should be set aside and that the other ten persons including the present appellant were participants in the rioting. Accordingly, the Court confirmed the conviction as against these ten under S. 147, I. P. C. As regards the charge under S. 148, I. P. C, Dharm Raj was acquitted but the conviction of Suraj Pal was maintained on the ground of his having a pistol in his hand at the time of the rioting. There remained the three charges against the ten persons under Ss. 323/149 for injuries on Gaya Prasad, 307/149 in respect of the gun-shot wounds received by Bisheshwar, and 302/149 in respect of the murder of Surajdin. It was held that the assault on Gaya Prasad was not proved beyond doubt and hence all the accused were acquitted in respect of this charge. As regards the other two charges, i.e., under Ss. 307/149 and 302/149, the High Court came to the conclusion that neither the attempt on the life of Bisheshwar by pistol fire nor the actual death of Surajdin by pistol fire can be said to have been in prosecution of the common object of the unlawful assembly nor to have been within the knowledge of the accused as being so likely. It was, therefore, held that none of the accused could be found guilty under S. 149, with reference to, the attempt on the life of Bisheshwar, or the death of Surajdin. All the same, in view of the fact that the evidence showed that the person who inflicted the pistol fire as against both was the appellant Suraj Pal, it was held that be was guilty of the offence under Ss. 307 and 302, I. P. C On this ground, therefore; the High Court while it set wide the convictions and sentences of all the accused under Ss. 307/149 and 302/149, maintained the convictions of the appellant under these two sections and maintained the sentences of transportation for life under S. 307 and of death under S. 302, I.P.C. The High Court convicted the other nine persons under S. 323/149 in respect of the injuries received by P. W. 2 and sentenced them therefor.

(3.) On the above statement of the course of these proceedings, one important fact which emerges is that there have been 'no' direct and individual charges against the appellant for the specific offences under Ss. 307 and 302, I.P.C. The question that arises is whether, without such direct charges the convictions and sentences for those offences can be maintained. It appears to us quite clear that a charge against a person as a member of an unlawful assembly in respect of an offence committed by one or other of the members of that assembly in prosecution of its common object is a substantially different one from a charge against any individual for an offence directly committed by him while being a member of such assembly. The liability of a person in respect of the latter is only for acts directly committed by him, while in respect of the former, the liability is for acts which may have been done by any one of the other members of the unlawful assembly, provided that it was in prosecution of the common object of the assembly or was such as the members knew to be likely to be so committed. A charge under S. 149, I. P. C. puts the person on notice only of two alleged facts viz., (1) that the offence was committed by one or other of the members of the unlawful assembly of which he is one, and (2) that the offence was committed in prosecution of the common object or is such that was known to be likely to be so committed. Whether or not S. 149, I. P. C. creates a distinct offence (as regards which there has been conflict of views in the High Courts), there can be no doubt that it creates a distinct head of criminal liability which has come to be known as "constructive liability" - a convenient phrase not used in the Indian Penal Code. There can. therefore, be no doubt that the direct individual liability of a person can only be fixed upon him with reference to a specific charge in respect of the particular offence. Such a case is not covered by Ss. 236 and 237, Criminal P. C. The framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence, is the foundation for a conviction and sentence therefor. The absence, therefore, of specific charges against the appellant under Ss. 307 and 302. I. P. C. in respect of which he has been sentenced to transportation for life and to death respectively, is a very serious lacuna in the proceedings in so far as it concerns him. The question then which arises for consideration is whether or not this lacuna has prejudiced him in his trial.