1. This is an appeal by special leave from the judgment of the High Court atAllahabad. The sole appellant before us has been convicted by the SessionsCourt under a sections 148, 307 and 302 of the Indian Penal Code, and sentencedto rigorous imprisonment for two and a half years under section 148, totransportation for life under section 307, and to death under section 302.These convictions and sentences have been confirmed by the High Court. At thetrial there were 19 other accused along with this appellant. All of them wereconvicted and sentenced by the trial court under various sections of the IndianPenal Code. On appeal ten out of them were acquitted by the High Court. Inrespect of the remaining nine besides this appellant, the convictions andsentences were partially modified. But this appeal is not concerned with them.The incident in the course of which these offences are said to have beencommitted took place in the evening of the 4th January, 1953, shortly beforesun set in a village called Sonari in the district Fatehpur, Uttar Pradesh.During that incident two persons, Bisheshwar and Surajdin, are alleged to havereceived gun-shot wounds. Bisheshwar survived but Surajdin died on the spot.The back-ground for this incident was as follows : In the village of Sonarithere were two factions between whom there was prior history of enmityresulting in criminal prosecutions by each against the other. It may be broadlystated that the accused persons in the present case belong to one party and theprosecution witnesses as well as the deceases person belong to the other party.In the year 1946 there was rioting between them in which two of the presentprosecution witnesses were assaulted. This led to a criminal case against someof the present accused and others, in which they were convicted and sentences,the members of the other party figuring therein as prosecution witnesses.Again, just five months prior to the present incident, there was anotherrioting in the village between these two groups. In that, one Ram Bharosey amember of the party of the present accused was killed. As a result 15 personsof 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 tothe sessions but the sessions trial had not started. According to theprosecution case, the occasion for the incident, which concerns us, was thatsome of the present accused wanted to persuade or prevent a member of theopposite-party by name, Bisheshwar - P.W. 2 in this case - from doing what iscalled pairavi on behalf of the accused in that case. (Pairavi is said to be theactive assistance in relation to Court proceedings which a friend or agentrenders 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 Saranon the evening of the 4th January, 1953, the present appellant and the otheraccused are said to have turned up before them, lathies in hand. The appellantis said to have asked Bisheshwar to give up doing pairavis in the then pendingcase on behalf of the accused therein. Bisheshwar having declined to do so, theappellant is said to have pulled out a pistol from his inner pocket and firedat him, as a result of which he fell down on the ground. P.Ws. 2 and 3 are saidto have dragged him inside the house and chained the door from inside, run upthe roof and raised an alarm, whereupon a number of persons of the other partyare said to have come running up. One of the persons who so came running up wasSurajdin who was cutting fodder at the house of Bhurey Lal, P.W. 1. The appellantis said to have fired at him with the pistol. He fell down and died on thespot. Another person named Gaya Prasad is said to have received some minorlathi injuries. Accused party thereafter is said to have run away. Firstinformation of the report was lodged by Bhurey Lal, P.W. 1, near about 12 thatvery night at the police station which was about nine miles from the scene ofthe occurrence. The police came on the scene the next morning and the usualinvestigation followed. The police filed on the 22nd February, 1953, acharge-sheet for offences under sections 147, 148, 323/149 and 307/149. Thecharge-sheet in so far as it was under section 323/149 related presumably tosome minor injuries said to have been received by Gaya Prasad, and in so far asit was under section 307/149 related presumably to the gun-shot wounds receivedby Bisheshwar, P.W. 2. It may be noticed that the charge-sheet did not concernitself with any offence or offences alleged to have been committed, in bringingabout the death of Surajdin by the firing of a pistol at him. It is on thischarge-sheet that cognizance of the case was taken by the Magistrate andcommittal proceedings were started. It appears, however, that the complainant-party finding that the police challan did not relate to the offence undersection 302, Indian Penal Code filed, on the 2nd May, 1953, a privatecomplaint, before the very Magistrate in whose court the committal proceedingswere by then pending. That complaint was filed by the same Bisheshwar, P.W. 1,who lodged the first information in this case on the 5th January, 1953. It setsout substantially the same facts. This complaint also was taken on the file ofthe Magistrate. The enquiry thereon was merged into the enquiry relating to thepolice challan case. The Magistrate eventually committed all the 20 accused totake their trial before the Sessions Judge by framing charges, under sections147, 323/149, 307/149 and 302/149. There was a specific charge under section148, Indian Penal Code against Suraj Pal and Dharm Raj, the former for beingarmed with a pistol and the latter for being armed with a pharsa, at the timeof the commission of the rioting. It is in respect of charges so framed by thecommitting Magistrate without any amendment or alteration that the accused weretried in the Sessions Court. It may be mentioned at this stage that the defenceof the accused, apart from the general denial of their having anything to dowith the incident and denials as to their having been present at theoccurrence, was to the effect that it was the complainant's party including thedeceased Surajdin who formed the unlawful assembly, with the common object ofbeating one Ram Pal of the village. This Ram Pal had appeared as a prosecutingwitness at the committal stage in the criminal proceedings by then pendingagainst the present prosecution witnesses as accused. It was also their defencethat it was one Ram Bhawan of that party who, in the course of the incident,fired pistol shots in the air and also shot, later, Surajdin and brought abouthis death.
2. The learned Sessions Judge found all the accused guilty of the variousoffences as charged and sentenced them. On appeal the High Court considered theprosecution evidence with reference to three aspects : (1) How far the mannerin which the prosecution alleged the incident to have taken place can beaccepted; (2) How far the prosecution case regarding the presence andparticipation of the various persons can be accepted; and (3) What offence canbe said to have been made out as against each of them. On the first questionthe High Court accepted the view that the incident took place as alleged by theprosecution. With reference to the second, the High Court set out elaboratelyvarious reasons why the prosecution evidence in so far as it implicatesparticular individuals, could not be accepted at its face value and required tobe carefully scrutinised. With reference to certain criteria which it wasconsidered necessary and right to adopt for purposes of scrutiny, the High Courtheld that the convictions of ten out of the 20 persons before it should be setaside and that the other ten persons including the present appellant wereparticipants in the rioting. Accordingly, the Court confirmed the conviction asagainst these under section 147, Indian Penal Code. As regards the charge undersection 148, Indian Penal Code, Dharm Raj was acquitted but the conviction ofSuraj Pal was maintained on the ground of his having a pistol in his hand atthe time of the rioting. There remained the three charges against the tenpersons under sections 323/149 for injuries on Gaya Prasad, 307/149 in respectof the gun-shot wounds received by Bisheshwar, and 302/149 in respect of themurder of Surajdin. It was held that the assault on Gaya Prasad was not provedbeyond doubt and hence all the accused were acquitted in respect of thischarge. As regards the other two charges, i.e., under sections 307/149 and302/149, the High Court came to the conclusion that neither the attempt on thelife of Bisheshwar by pistol fire nor the actual death of Surajdin by pistolfire can be said to have been in prosecution of the common object of theunlawful assembly nor to have been within the knowledge of the accused as beingso likely. It was, therefore, held that none of the accused could be foundguilty under section 149, with reference to, the attempt on the life ofBisheshwar, or the death of Surajdin. All the same, in view of the fact thatthe evidence showed that the person who inflicted the pistol fire as againstboth was the appellant Suraj Pal, it was held that he was guilty of theoffences under sections 307 and 302, Indian Penal Code. On this ground,therefore, the High Court, while it set aside the convictions and sentences ofall the accused under sections 307/149 and 302/149, maintained the convictionsof the appellant under these two sections and maintained the sentences oftransportation for life under section 307 and of death under section 302,Indian Penal Code. The High Court convicted the other nine persons undersection 323/149 in respect of the injuries received by P.W. 2 and sentencedthem therefore.
3. On the above statement of the course of these proceedings, one importantfact which emerges is that there have been no direct and individual chargesagainst the appellant for the specific offences under sections 307 and 302,Indian Penal Code. The question that arises is whether, without such directcharges the convictions and sentences for those offences can be maintained. Itappears to us quite clear that a charge against a person as a member of anunlawful assembly in respect of an offence committed by one or other of themembers of that assembly in prosecution of its common object is a substantiallydifferent one from a charge against any individual for an offence directlycommitted by him while being a member of such assembly. The liability of aperson 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 doneby any one of the other members of the unlawful assembly, provided that it wasin prosecution of the common object of the assembly or was such as the membersknew to be likely to be so committed. A charge under section 149, Indian PenalCode puts the person on notice only of two alleged facts, viz. (1) that theoffence was committed by one or other of the members of the unlawful assemblyof which he is one, and (2) that the offence was committed in prosecution ofthe common object or is such that was known to be likely to be so committed.Whether or not section 149, Indian Penal Code creates a distinct offence (asregards which there has been conflict of views in the High Courts), there canbe no doubt that it creates a distinct head of criminal liability which hascome to be known as 'constructive liability' - a convenient phrasenot used in the Indian Penal Code. There can, therefore, be no doubt that thedirect individual liability of a person can only be fixed upon him withreference to a specific charge in respect of the particular offence. Such acase is not covered by sections 236 and 237 of the Code of Criminal Procedure.The framing of a specific and distinct charge in respect of every distinct headof criminal liability constituting an offence, is the foundation for aconviction and sentence therefore. The absence, therefore, of specific chargesagainst the appellant under sections 307 and 302, Indian Penal Code in respectof which he has been sentenced to transportation for life and death respectively,is a very serious lacuna in the proceedings in so far as it concerns him. Thequestion then which arises for consideration is whether or not this lacuna hasprejudiced him in his trial.
4. It is perfectly true that the initial accusation as disclosed by thefirst information lodged by the complainant, P.W. 1, on the 5th January, 1953,specifically, was to the effect that it was this appellant who with a pistolfired both as against Bisheshwar, P.W. 2, as also against the deceased,Surajdin. It is also true that this allegation was repeated in the privatecomplaint filed by this same P.W. 1 in May, 1953, directly before theMagistrate. It is also undeniable that the evidence in court, both in thecommittal proceedings as well as at the sessions trial, given by theprosecution witnesses was in support of that allegation. But curiously enough,apart from the absence of any individual charges against the appellant forthese specific offences, even the charges against him and others relating tothe injuries inflicted on P.W. 2 and the deceased Surajdin are somewhat vagueas to the authorship thereof. The relevant charges run as follows (afterspecifying the members alleged to constitute the unlawful assembly) :
'Firstly :- That you, on the4th day of January 1953 at about half an hour before sunset in village Sonari,formed an unlawful assembly with the common object of committing the murders ofBisheshwar and Suraj Din and committed rioting.
And thereby committed an offencepunishable under section 147 of the Indian Penal Code.
Secondly :- That you on the samedate, time and place, in prosecution of the common object of the said unlawfulassembly of which you were members at that time committed the murder of SurajDin who was shot dead by a pistol fire.
And thereby committed an offencepunishable under section 302/149 of the Indian Penal Code.
Thirdly :- That you on the samedate, time and place, in prosecution of the common object of the said unlawfulassembly of which you were members at that time attempted to commit the murderof Bisheshwar Singh by means of a pistol fire.
And thereby committed an offencepunishable under section 307/149 of the Indian Penal Code'.
5. The portions underlined (for the purposes of this judgment) in the chargeunder heads 2 and 3 above are curiously vague. They appear to indicate adefinite non-committal attitude on the part of the Public Prosecutor and theCourt, which has the ultimate responsibility for the framing of the charge,(vide section 226, Code of Criminal Procedure) as to who is the active authorof the pistol fire referred to under these two heads of charge. When the chargewas so pointedly vague, no accused was bound to direct his attention in hisdefence to the question as to whether he or somebody else was the person whofired the pistol which brought about the gun-shot wounds. It has been broughtto our notice that the appellant has been specifically questioned in the Courtof Sessions under section 342, Code of Criminal Procedure on the footing thathe was the person who fired at P.W. 2 and the deceases, Surajdin, and that theaccused denied it. But this cannot be said to remove any prejudice that wouldarise by virtue of the vagueness in the charge at the sessions trial, as to whowas the author of the pistol fire. Normally in a sessions trial the accused hasno right of cross-examination after the questioning under section 342, Code ofCriminal Procedure. It has been suggested that since such a question was putalso in the questioning by the committing Magistrate under section 342, Code ofCriminal Procedure, the accused had ample notice of this specific case beforethe commencement of the sessions trial. But it does not follow that there couldbe no prejudice. On the other hand, the very fact that in spite of suchquestioning the charges framed in the Magistrate's Court, with their vagueness,in so far as this feature therein is concerned, has been maintained, before theSessions Court without any amendment, is likely to have been misleading. Theappellant might ell have relied on the absence of any such amendment as beingan indication that he was not called upon to defend himself on the footing ofhis being the author of the pistol fire. In a case so serious as that whichinvolves the sentences of transportation for life, and of death, andparticularly in a case like the present one, where the death sentence has beenawarded in the trial court by distinguishing this appellant from all the otheraccused in respect of his individual act by way of pistol fire, it is difficultto say that the accused has not been prejudiced by the absence of specificcharges under sections 307 and 302, Indian Penal Code. Further, the medicalevidence indicates that P.W. 2 as well as the deceased Surajdin had gun-shotwounds on their person. The evidence of the Doctor is to the effect that thesewounds may have been caused by a country pistol which, it is alleged, theappellant had in his hand. It has been suggested on behalf of the defence thatthe Medical Office was not competent to speak about it and that if theprosecution wanted to rely thereupon, they should have called an arms expert tospeak to the same. Whether or not this comment is legitimate, it is clear thatif the appellant is to be found directly responsible for inflicting the wounds,noted as gun-shot wounds by the Medical Officer, he might well have availedhimself of the opportunity to elucidate, by cross-examination or positivedefence, the nature of the fire-arm which would have caused the actual injuriesfound on the bodies of P.W. 2 and of deceased Surajdin. In all thecircumstances above noticed, we are satisfied that the absence of specificcharges against the appellant under sections 307 and 302, Indian Penal Code hasmaterially prejudiced him. We must accordingly set aside the convictions andsentences of the appellant under sections 307 and 302 of the Indian Penal Code.
6. The further question that arises is whether or not we are to direct aretrial of the appellant in respect of these offences. We have given our bestconsideration to all the circumstances of this case and have for this purposelooked into the evidence and the material on the record. The case disclosescertain outstanding features. At the very outset and simultaneously with thefirst information filed by P. W. 1 in this case, there was another report filedby one Ram Pal at the same police station, almost exactly at the same time,relating to the same incident. This is Ex. P-16 on the record. This report issaid to have been lodged at the police station at 12-15 in the night, while theother report is said to have been lodged at 12-16 that night. The report, Ex.P-16, alleged the present prosecution party to be the aggressors and putforward, as the occasion for the incident, an attempt on the part of theprosecution party to beat Ram Pal, the complainant of that complaint, forhaving given evidence in support of the prosecution in the committalproceedings of the rioting case then pending against the present prosecutionwitnesses (as accused therein) - obviously with a view to prevent him fromgiving evidence in the Sessions Court against them. That complaint specificallyrefers to one Ram Bhawan who is P.W. 4 in the present case as the person whohad a pistol in hand and fired with it. That report makes no mention of anyinjuries having been by then received from pistol fire, in the course of thatincident. Of course, there is no proof, in this case, of any of the allegationsin that report. But it appears from the order of commitment in this case (whichforms part of the present printed record) that with reference to that reportthere was pending, at the date of the committal, a cross-case against some sothe prosecution witnesses in the present case for the same incident. The policeconstable moharrir of the police station where the counter complaint, Ex. P-16was lodged and who accepted both the complaints (1) from Bhurey Lal, and (2)from Ram Pal, has stated in his evidence that when the complaint, Ex. P-16, wasfiled by Ram Pal the present appellant Suraj Pal had also accompanied Ram Pal,the complainant therein. This may well be claimed to be the conduct of aninnocent person. It is also not without some significance that admittedly andas a matter of fact, the police did not file any charge-sheet in the presentcase against any one for the actual offence of murder under section 302, IndianPenal Code and that even in the charge-sheet which they did file they confinedthe case to section 307, Indian Penal Code but did not commit themselves as towho out of the members of the unlawful assembly was the author of the pistolfire. So far as it appears from the police charge-sheet dated the 22ndFebruary, 1953, as printed in the record before us, there is a statementtherein to the effect 'Suraj Pal Singh and Ram Manohar were armed withpistols'. Ram Manohar is also one of the accused who was put up for trial.The statements of some of the prosecution witnesses furnish indication of morethan one fire-arm having been used at the incident. Thus, for instance,Bisheshwar, P.W. 2, said 'I heard 3 or 4 guns being fired outside and alsoheard a noise'. P.W. 4, Ram Bhawan, said 'We four persons threw lumpsof earth from the well at the accused persons, the accused retired and firedtheir gun twice.............. The accused had fired a gun from the door ofMahadeo when going away, then, had fired two or three guns from his door'.P.W. 5, Gaya Prasad, said 'Two or three guns afterwards had been firedfrom the door of Mahadeo Pandit. Those guns had been fired from the lane. Theguns had been fired at the door of Ram Saran and had hit it'. All thesewitnesses no doubt assert that so far as the particular injuries with whichthis case is concerned the firing was by the appellant Suraj Pal. But the abovestatements by these witnesses in the cross-examination may well indicate thatthere may have been other persons in the unlawful assembly at that time witharms in their hands, who made use of them by firing. Apart from the use ofpistols in the course of that incident, by one party or the other, there areclear indications that there was a mutual fight between both the parties. Twoof the persons on the side of the accused, viz. Lal Pratap and Chedi Lal havereceived some injuries and their injury certificates have been marked as Exs.D-1 and D-2. The prosecution witnesses themselves admit that there was mutualfighting to this extent, viz. that there was also throwing of brickbats by thecomplainant's party against the rioters. As already stated there is in fact a countercase against some of the present prosecution witnesses in respect of the sameincident. In such a situation any further trial is likely to result only invery doubtful and unreliable evidence being adduced after a considerable lapseof time. Even as it is, the evidence recorded in the present case has beenfound by the High Court in its judgment as not acceptable at it face value. Thelearned Judges have dealt with this aspect at length and they wound up theirconsideration of this part of the case as follows :
'For the above reasons, I am of opinion that thereis a good deal of substance in this part of the arguments of the appellants'counsel. The question that would arise is as to which of the particular accusedis guilty and what should be the criterion for deciding this matter. In view ofthe biassed and interested nature of the prosecution evidence, I am of opinionthat the presence of only those accused should be held to have been proved whohave been assigned any definite part by the prosecution witnesses or whosepresence is corroborated by some other circumstantial evidence. In view of thehighly interested nature of the prosecution evidence, dealing with the firstaspect of the case also, viz. the question as to how far the prosecution have succeededin proving the manner in which the incident occurred, I have not accepted theprosecution case unless it found corroboration from some other factor of acircumstantial nature or from probabilities of the case'.
7. It is by reference to these standards that they have rejected theevidence of the prosecution witnesses in so far as they implicated then otheraccused whom the High Court acquitted. But it appears to us, that judged by thevery same standards there is no adequate reason for accepting the evidence asbeing reliable in respect of this appellant also. In fact there is good reasonto feel that on the same standards this appellant also should have got thebenefit of the doubt. At this stage, it is not out of place to mention onefact. It appears from the evidence of the Investigating Officer, P.W. 14, thatin the course of the investigation the prosecuting authorities were of theopinion that the murder in this case was to be attributed to the prosecutionwitness, Ram Bhawan, P.W. 4, and not to the appellant, and that in their vieweven the evidence as against Ram Bhawan was not sufficient to put him on trialfor the murder. Doubtless such an opinion of the prosecuting authorities has norelevancy in the case and should not have been placed on the record in thiscase. But when we have to consider the desirability or otherwise of retrial, weneed not shut our eyes to these features of the case which have been brought onthe record. In the circumstances mentioned above we do not consider that theinterests of justice require that any retrial should be ordered. We accordinglydirect that there shall be no retrial.
8. In the result, the convictions of the appellant under sections 307 and302 of the Indian Penal Code and the sentences therefore are hereby set aside.But his conviction under section 148 of the Indian Penal Code is maintained asalso the sentence of two years and a half in respect thereof. This appeal isaccordingly allowed partially to the extent indicated above.
9. Appeal partially allowed.