SARWAN SINGH Vs. STATE

JUDGEMENT

(1.) This is an application under Article 134(1)(c), Constitution of India, by Sarwan Singh whose conviction by the Ses. J., Barnala under Section 302 read with Sections 149 & 148, I.P.C. was uphold & the sentence of transportation for life affirmed by this Court for a certificate that the case is fit one for appeal to the Supreme Court.

(2.) Out of the eight persons alleged to be involved in the murder of one Mukhtiar Singh, six were put up for trial & the rest two were shown as absconders. All the six were found guilty & convicted by the trial Judge under Sections 302/149 & 148, I.P.C. and sentenced to transportation for life & one year's R.I. each on the two counts. On their appeal this Bench arrived at the conclusion that the case against five of them was not free from reasonable doubt & giving them the benefit accepted their appeal & acquitted them of the charges. As against Sarwan Singh, it was found that his participation in the murder was beyond doubt established & it was further found to be proved that the participants in the crime, including the Petitioner, were five or more than five & they formed an unlawful assembly in the prosecution of the common object of which Mukhtar Singh was murdered. In the concluding portion of the judgment it was observed that the Petitioner himself fired the shot that hit the deceased, for at least was a member of the unlawful assembly, a member or members of which fired at the deceased resulting in his death. On these findings while acquitting the rest of the Appellants, the conviction & sentences of the Petitioner were maintained.

(3.) Shri Jagan Nath the learned Counsel for the Petitioner contends that since a question of law whether on the acquittal of five of the culprits the conviction of only one, by the application of Section 149, I.P.C., was justified was involved, it was fit case to be taken in appeal. It is stressed that the finding that five of the culprits were entitled to the benefit of doubt which resulted in their acquittal amounted to a finding that they were never there & did not form members of the alleged unlawful assembly. If this view be accepted, it is argued, the number of persons who took part in the assault would be reduced to less than five & therefore, the conviction of the Petitioner under Sections 148 & 302/149, I.P.C. was illegal & unsustainable. The point having not been urged when the appeal was argued was not specifically discussed in the judgment, but on the findings arrived at by us, I do not think it was in any way illegal to convict the Petitioner for the charges, notwithstanding the fact that the participation of the other five who were acquitted was not found to be proved to our satisfaction, On the appreciation of the evidence in the case it was definitely held that the assailants of whom the Petitioner was one, were five or more & they formed an unlawful assembly. This amounted to saying that it was possible that some one or more of the persons acquitted might not have been there & it was difficult to find out which of them might have been falsely implicated, but it was clear that the assailants including the Petitioner were of the requisite number & they constituted an unlawful assembly. I do not agree with the learned Counsel that in every case where the names of all the persons who are alleged to have formed an unlawful assembly & to have participated in a crime are specifically given, the acquittal of some of them reducing the number of the rest to less than five must necessarily result in the acquittal of all. There may be a case in which some of the accused are falsely included in place of the real culprits who in fact had not been identified. The Court while acquitting them who in its opinion appear to have been so implicated may yet convict one or more with respect to whose participation there could not possibly be any doubt if further it be of the definite opinion that the number of the participant s could not be less than five & they formed an unlawful assembly. In the present case all that we found was that on account of paucity of evidence it was not proved to our satisfaction that all the five persona who were acquitted were present & took part in the murder, this does not amount to a finding to the effect that it was proved that all of thorn were not there. Certain observations made in the two cases cited at the bar, to which our attention has been driven, have not made me change the view that I take. In Mustqim Jugga V. Emperor, 1939 AIR(Lah) 416, the observation was more of an obiter dicta after it had been found that the accused had in fact acted in the exercise of the right of private defence of person, & in thin view of the case it had been held that they could not be said to have formed into an unlawful assembly. Moreover, in that case it was doubtful whether the number of persons who had committed the offence amounted to five & the trial Judge also was not very clear oh the point. In Ram Rup V. Emperor, 1945 AIR(All) 31 a distinction was drawn between cases whore the evidence discloses that in addition to the men who were actually put upon trial there were others, known or unknown, who were not before the Court, & those where the prosecution had named all the accused some of whom were given the benefit of doubt lowing the number of the rest to loss than five. In the first set of cases it was observed the conviction of persons who may be less than five was legal & illegal in the second. To me the distinction does not appear to be very much material & I do not think the principle laid down would apply to every case. In either of the two categories of the cases, it is not a matter of importance as to who the other associates of the accused found to be guilty were, so long as the Court is definitely of the opinion that the culprits who actually took part were of the requisite number. Supposing there is a case in which the prosecution definitely names five persons as the culprits but the Court comes to the conclusion that though the number was five the participation of one of them was not free from doubt & possibly ho might have been substituted for another, how can it be said that on this finding the four whose participation is established beyond doubt cannot be convicted for having formed an unlawful assembly It would not, therefore, be correct to say that in all cases where particular parsons are named as participants in a crime & to have formed an unlawful assembly, it would be illegal to convict any number less than five, if the identify of some is not proved beyond doubt & if the Court finds that the number was not less than five. In Rahman V. Emperor, 1926 AIR(Lah) 521 five persons were charged for forming an unlawful assembly & four of them were acquitted as their presence at the place of offence was not satisfactorily proved & it was held that the conviction of only one under Section 147, Penal Code was not illegal. In Sadho V. Emperor, 0 152 IndCas 108 persons were implicated by name to have taken part in a riot & it was not the case of anybody that there were more persons who were not recognised or identified, only three out of them were convicted under Section 147, Penal Code by the trial Judge & the conviction was upheld by the Court because it had been found that more than five persona were members of the unlawful assembly. Mangal Singh Pratap Singh V. Emperor, 1946 AIR(Lah) 309, is another case in which a Division Bench of the Lahore High Court appears to have taken a similar view though the facts were slightly different.