Supreme Court upheld convictions under Sections 302/149 IPC despite 14 acquittals in an 18-accused riot case. Court held acquittals concern identity, not total number of assailants. Applied vicarious liability and recommended remission for a juvenile.
Appeal dismissed; convictions affirmed; remission of remaining sentence recommended for minor appellant Om Pal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
587
A
DHARAM PAL & ORS.
v.
THE STATE OF U.P.
'
B
September 1, 1975
[M. H. BEG, P. N. BHAGWATI AND R. S. S.~11.ICARIA, JJ.]
/, P. C. Sl'c. ,J02 rec.d with sec. 149' and 34--Conviction of four accused and acquittal of_ re.~t-Whe1her unlawful assentbly-W/lether conviction under co1nn1on i111e11tion-Vica1ious lki.bility-U.P. CJdldren Act, 1951-Sec. 29- ' Young accused-Recdn11nendntion of re111issio11,
The 4 appellants were trled along with 14 others for the offence of rioting in the course of which 2 n1urders were conunitted at 6-30 a.m. on 7~6--1967. c The prosecution revealed a Jong standing. enmity between the tyo grOups; one' to which the appellants belonged and the. other to which the deceased belonged. Thei defence -case was that people belonging to the group of the deceased! kille.d the deceased and that thereafter they attacked the 3 injured appellants. At the trial, however, the defence witnesess stated that the 3 witnesses who were injured attempted to save, the deceased and were, therefore, injured.
y
I
The prosecution evidence suffered from-some quite obvious infirmities. Each D of the 4 injured eye witnesses while naming each of the 18 accused person~ as participants in the occurrence an~~ecifying their weapons _without arty contradiction had failed to assign any partkular part of any of them. Each injured eye-witness said that all 18 accused nersons \Vere assaulting the injurtd. This was hardly consistent with the medicaf evidence.
The 1'ria1 Court acquitted 11 accused giving them the benefit of doubt <n1d convicted 7 including the 4 appellants under section 302 read with section 149.
E
The High Court gave the benefit of doubt to a11 the accused except the 4 appellants. The High Court came to the conclusion that the 4 appellants had. taken part in the attack in viCw of the· adn1ission of the 4 accused about their participation in the occurrence corroborated by the injuries on the bodies of 3 of then1;
On appeal by Special· Leave, it was contended by the appellants that sini:e 14 out of 18 accused persons were actually ac·quitted the Court n1ust presume F that total number or assailants was less than 5 and that they, therefore, cannot he convicted under section 149.
HELD : 1. It is true that the acquittal of an accused person does raise, in the eye of law, a presumption that he is innocent even if be \Vas actua1ly guilty, but it is only the acquitted accused person and not the convicted accused person who can, as a rule. get the· benefit of such a presun1ption. The effect of findings on qustions of fct depends upon the nature of those findings. If only five known persons are a11eged to have participated in an attack and the G courts find that 2 of them were falsely implicated it would be quite natural and logical to infer or presume that the participants were less th.an 5 in number. On the other hand, if the court holds that the assailants were· actually 5 in number but there could be a doubt as to the identity of 2 of the aJlcged assailants, and. therefOre, acquits 2 Of them., the others will not get thei benefit of doubt, so long as there is a firn1 finding based on good evidence and sound reasoning that the participants we·re 5 or more in nuni.ber. Such a ca .. -.e i-.; one of doubt only as to ideritity or some participants and not as to total number of participants. [594A-C] ·
H
[1976] [ S.C.R.
SUPREME COURT REPORTS
588
.. ,,.-
A
| 3.The number and locationofinjuriesonboth sides also indicate an attack by a groupofpersons which must have surroundedthepartyofthedeceased persons travelling ill the Buggi. Evenif2 persons are engaged in stoppingth..: Bugg_iand there are 2oneach sideofthe Buggi then the number wouldbe6. Again, evenifone personisassumedtobe the assailantofeach oi' the victims ina.simultaneousattack upon them the number of such assailants alone would conietoatleast6.'Thedecesedhad injuries with 9harp edged weapons and lat/tis. Itis·,therefore, clear that each one was attackedbymorethanone person. These facts were enough to cometothe conclusion that the total numberofassailants couldnotconceivably have been less than5. [593C.·E} 4.Evenifthe number of assailants couJd have been less than_5_(which011 the facts stated was reallynotpossible),wethinkthat tho fact that the attacking party was clearly shown to havewaitdforthe Buggi to reach near the field of Daryao in the early hours shows pre-planning. Some of the assailants bad sharp edged weapons. They were obviously lying inwaitforthe.Buggi to arrive. A more convincingevidellCe(oi'a pre-concert was not necessary. Therefore,ifnecessary,. we would not have hesitated to apply section 34 of I.P.C, also to this case. Theprinciple of vicarious liability does not depend upon the necessitytoconvict the required number of persons, but,itdepends uoon proof of facts beyond reasonable doubt whichmakes.such a principle applicable.[594F-H,595-A] _Yeshwant& Anr._v.StateofMaharashtra[1973) 1S.C.R.291 at302-303, and_SukhRflni_v._Stateof_U.P.[1974]2S.C.R. 518distinguished. |
B C |
..,, • • - ~ |
|---|---|---|
| 5. Theageof appellantOn1Palatthe ti'me of trialwa:Y15years. Section 29 of the U.P. Children Act,1951,was applicabletothe case. This question wasnotraised either beforutheTrial Courtorbef'ore the High Court. Although OmPalaccused was saidtobearmed with alath~nospecificpartwas assignedl tohimbytheprosecution witnesses.Hemust have been misltd by the bad exampleofhis elders.Noprevious participation in such a .case andnoprevious conviction was shown against him. The ap-propriate action under section29 oftherChildren Act eould have been taken in his caseifthe question had been raised in time.TheCourt recommended the remission of the remaining period ofOm Pal to the authorities concerned. [59,80,H,599A-C] CRIMINALAPPELLATEJURISDICTION: Criminal Appeal No. 108 of 1971. |
D E |
|
| Appeal by Special Leave from the Judgment and Order dated the 20th November, 1970 of the Allahabad High Court in Crimh1al Appeal _No._495 of 1968. |
||
| D.Mukherjee,U.K. Jha andU.P.Singh:for the Appellant. _D.P.Unival and0.P.Rana_for the Respondent. |
The Judgment of the Court was delivered by-
BEG, J.-.,.-The ·four appellants Darya.a Singh, aged 46 years, Birbal aged 50 years, Dharam Pal aged 29 years and Om Pal, •aged 15 years, were tried, alongwith 14 others, for the offence of rioting in the course of which two murders were committed, on 7.6.1967, at about 6.30 a.m., on a path adjoiaing the field of the appellant Daryao Singh leading to village Parsoli from village Nirpura, in Police Station Doghat, in the District of Meerut. The Trial Court acquitted eleven accused persons giving them the benefit of doubt and convicted seven including the four appellants. Each of the -accused persons was charged and convicted under Section 302, read with SectiD',1 149, Indian Penal Code and sentenced to life imprisonment, in addition to charges and convictions under Section 149/324 and 149/34 I.P.C. and either under Section 147 or Section 148 I.P.C. depending upon the weapon alleged _lo have been used by an accused person.
DHAR,AM PAL v. U.P. STATE (Beg, J.)
589
•
,
A
The prosecution case revealed a long standing enmity between two groups of village Nirpura : one to which the appellants belonged and another to which MuKhtara and Raghubir, the murdered men, and the four other injured persons belonged. As is not unusual, the origin· of the hostility between the two sides seems to have been a dispute over cultivable land between coli'aterals who had some joint Khatas. fl Asa Ram, P.W. 1, claimed to be in separate possession of some plots with his two brothers, including Raghubira (murdered), and his uncle Mukhtara (murdered). It was alleged by Asa Ram (P.W. 1) that Daryao Singh appellant wanted to take forcible possession of some land cultivated by him. Daryao Singh and others had already filed a partition suit which was pendi1 ag at the time of the occurrence. It appears that Hargyan, the father of the appellant Daryao, a first cousin pf Mukhtara, the murdered man, had also been murdered in 1953 c over a similar dispute. Asa Ram (P.W.1), and Raghubira (dece_ased), Bija (P.W. 10) and Asghar (P.W. 4) had been convicted and sentenced to life imprisonment. They had been released on parole after five years· imprisonment.
On the date of occurrence, Mukhtara, the murdered man,, was said to be proceeding with Raghubir, who was also murdered, and 0 Asa Ram, P.W.l, and Bija, P.W.10, all sitting in a, buggi driven by Asghar, P.W.4, and Smt. Jahani, P.W.3, the wife of Asa Ram, P.W.1, was said to be following the buggi at a short distance with some food for the party. When this buggi reached the field of Daryao Singh, where a number of persons, said to be eighteen altogether, whose names are m~.1tioned in the First Information Report lodged at Police Station Doghat at a distance of three miles from village Nirpura at 8.30 a.m., E were sitting on the boundary. These persons are alleged to have surrounded the buggi and attucked its occupants with balams and lathies shouting that the whole party in the buggi should be killed. Five occupants of. t~e buggi, and, after that, Smt. Jahani, who soon joined them, were miured. Two of them, Mukhtara and Raghubir, died very soon after the attack. It was alleged that Dharam Pal, Birbal a'ad Daryao, appellants, and Nahar, Ajab Singh, and Ram Kishan F acquitted persons, were armed with balams one Salek Chand was armed with a spade, and the rest with la this. 'A number of witnesses are said to have arrived in response to the shout of the injured occupants of the buggi. The following injuries are shown to have been sustained by the victims of the attack : .
G
H
| 590 | SUPREMECOURT REPORTS [J976]JS.C.R. |
||
|---|---|---|---|
| 5. 6. 2. |
Transverse incised wound Hin. xtin.X bone deep on the head 3 in. behind the upper partofthe right ear. The margins of injuriesNos.4 and 5 were clear cut, smooth and well defined and angles on both the end .were acute. Round blue mark 2 in. X 2in.on the right shoulder portion. Therewasswelling all over the head. Therewas no reference of injuriesNos.1and6inthe inquest report". RAGHUBIRA |
A B |
;· • |
| "!. | Transverse abrasiont in.X~in.ontheleft ankle inner side. |
||
| 2. | Vertical punctured wound lin.Xl/3in.Xi in. on the back side,.ofthe elbow, margins, clean cut, smooth andwell defined and angles were acute. |
c | |
| 3. | Transverse lacerated wound on the head, H in. Xt.in. bone deep on the rightside3 in above the ear. |
||
| 4. 3. |
Round wound onthehead4tin.above the middle of the right eye-brow with margins clean cut". ASA. |
·n | y |
| "! 2. |
.Punctured wound 1in.Xtin.x!in.on the left side of the chestwithabrasions on the margins,6tin.below theaxi!c. Abrasion!in.Xtin.on the left shoulder. |
||
| 3. | AbrasionltXkin., oblique, on the right side of the chest extending towards right shoulder from cpigastrium. |
E | |
| 4. | Abrasiontin.Xtin.on the inner side of the left hand 1 in. above the wrist. |
t | |
| 5. | Abrasiontin.x l /6in.on the right arm back side 3 in. above the elbow. |
||
| 6. | Contusionlin.xtin. ontheright side3tin. below the edge of the iliac crest. |
F | - |
| 7. 4. |
Incised wound lin.X 1 /10in.X skin deeptin.below the left eye." SMT.JAHANI: |
||
| "! | .Lacerated wound Hin.Xlin. bone deep from front to backward3tin.above the left ear. . |
G | |
| 2. | Co\1tusion4tin.XIin.on the left scapular region.21in. below the shoulder. |
||
| 3. | ContusionH- in.Xtin.parallel to the earth extending from the upper and inner end of injury No.2.These injuries were simple andh11dbeen caused by some blunt weapon, like lathi_~ndwere about 6 hours old (fresh). I had prepared them1uryreport Ex. Ka 16 at the time ofexaminatio'.1.It bears·mysignature andiscorrect." |
H |
DHARAM PAL V. U.P. STATE (Beg, J.)
5 91
_.,. >
A
5. ASGHAR
B
[1976] ) S.C.R.
592
SUPREME COURT REPORTS
•
It is significant that in answer to the last question put to Darao Singh, appellant, in the Committing Magistrate's Curt, under Secttun 342 Criminal Prncedure Code, whether he had nothing else to say, the first thing that came to his mind was that Asa Ram P.W.L and Bijai, P.W.10, and Raghubir (deceased) had killed his father about 15 years ago.
The defence case seemed quite absurd. It was that, Asa Ram and Bijai and Asghar, -after having killed Mukhtara and Raghubir, had come and attacked the three injured appellants at the time and place given by the prosecution. Their defence witness, however, in an obvious attempt to explain the injuries of the three appellants, put forward the entirely new version that, when Asa, Bijai, and Asghar, were killing Mukhtara and Raghubir, the three injured appellants had attempted to save the murdered men and were injured as a .consequence. The accused had even filed a First Information Report on these lines. They unsuccessfully tried to prosecute Asa and Bijai and Asghar who could not, as the Trial Court and the High Court had rightly observed, be expected to run berserk suddenly and attack persons on their own side for no explicable reason.
The prosecution had, in addition to examining injured witnesses, mentioned above, produced Rattan Singh P.W.2, Kain, P.W.9. and L•akhi, P.W.7, whose testimony was discarded by it on two grounds : firstly, because each one was shown to have some enmity with some accused perso'.1; and, secondly, because they were said to have been standing at a Hara! nearly 400 paces away from where, according to the High Court, they could not have seen the occurrence. If there was no obstruction to the range of vision, and none was shewn by evidence, these witnesses could at least make ont the number of assailants from this distai,1ce as sunlight was there.
The prosecution evidence suffered from some quite obvious infirmities. Each of the four injnred eye witnesses, while naming each of the eighteen accused persons as participants in the occurrence and specifying their weapons, without any contradiction, had failed to assign i:i.:iy particular part to any of them. Each injured witness said that all the eighteen accused persons, n•amed in the First Information Report, were assaulting the injured. This was hardly consistent with either the medical evidence or the very short time the whole occurrence was said to have lasted. It was physically impossible for all the eighteen accused persons to attack simultaneously each of· the five victims. However, we eoannot interpret the impressidllS of rustic witnesses, sought to be conveyed through their statements, as though they were made in carefully drawn up documents calling for a literal interpretation. It was likely that each of them had seen some acts of some assailants, bnt, due to natural discrepancies in their accounts, as each could only depose the part he had observed each had bee!,1 instructed to omit this part of his testimony. That ~ay explain how each consistently stated that all the accused persons were attacking
A
B
c
D
£
F
G
II
A -<_ • 1
~ (
1
t t
DHAR.AM PAL V. U.P. STATE (Beg, J.)
593
'
[1976) l S.c.!!
SUPREME COURT REPORTS
;;94
A
i
It is true that the acquittal of an •accused person does raise, in the eye of Jaw, a presumption that he is innocent even if he was actually guilty. But, it is only the acquitted accused person a'.1d not the convicted accused persons who can, as a rule, get the benefit of such a presumption. The effect of findings on questions of fact dep~mb upon the nature of those findings. If, for exampk, only five known persol.as arc alleged to have participated in an attack but the Courts find that two of them were falsely implicated, it would be quite natural and logical to infer or presume that the participants were less than five in number. On the other hand, if the Court holds that the assailants were actually five in number, but there could be a doubt as to the identity of two of the alleged assailants, and, therefore, acquits two of them, the others will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding, based on good evidence and sound reasoning, that the participants were five or more in number. Such a case is one of doubt only as to identity of some participants :rad not as to be total number of participants. It may be that a definite conclusion that the number of participants was at least five may be very difficult to reach where the allegation of participation is confined to five known persons and \here is doubt about the identity of even one. But, where a large number of ktaown persons (such as eighteen, as is the case before us), are alleged to have particiP'ated and the Court acts on the principle that it is better to err on the side of safety; so that no injustice is done to a possibly wrongly implicated accused, and benefit of doubt is reaped by a large number, with the result that their acquittal, out of abundant cauticm, reduces the number of those about whose partiCipation there can be n.o doubt to less than five, it may not be really difficult at all, as it not in the case before us, to reach the conclusion that,. having regard to undeniable facts, the number of partiCipants could not possibly be Jess than five. We have, for the reasons given above, also rrnched the same conclusion as the learned Judges of the Allahabad High Court. We wish that the High Court had itself givela such reasons, which are not at all difficult to find in this case, so that its conclusion on the number of participants may not have appeared ratlier abrupt. Justice has not only to be done, but, as has been often said, must manifestly appear to be done.
Even if the number of assailants cm1ld have been less than five i11 the instant case (which, we think, on the facts stated above, was really not possible), wo think that the fact that the attacking) party wa5 clearly shown to have waited for the buggi "' reach near the field of Daryao in the early hours of 7.6.1967, shows pre-planning. SoP' of the assailants kad sharp edged weapons. They were obviously lying in wait for the buggi to arrive. They surrounded and attacked the occupants shouting that_ the occupants will be killed. We do not think that more convincing evidence of a pre-concert was necessary. Therefore, if we had thought it 11eccssary, we would not have hesitated to apply Section 34, I.P.C. also to this case. The principle of vicarious liability does not depend upon the necessity to convict a required number of persons. It depends upon proof of facts, beyond reasonable
c
D
E
F
G
H
•
DHARAM PAL V. U.P. STATE (Beg, J.)
r.
fa Yeshwant's case (supra), the question was whether the acquittal of an alleged participant, said to be Brahmanand Tiwari, for the murder· C of a man called Sukal, could make it impossible to apply the principle of vicarious liability to convict, under Section 302/34 I.P.C., Yeshwant, the only other participant in murder. This Court observed (at p. 303) : "The benefit of this doubt can oniy go to the appellaat Brahmanand Tiwari and not to the other accused persons who were known well to eacli eye-witness."
;
()
Distinguishing Krishna Govind Patil v. State of Maharashtra,('} this Court said in Yeshwant's case (supra) (at p. 302) : "We do not think that this decision which depends upon its own facts, as criminal cases generally do, lays down any general principle that, where the identity of one of the participants is doubtful, the whole case must ead in acquittal. E Such a question belongs to the realm of facts and not of law:"
•
The following cases were also cited before us : Dalip Singh & Ors. v. State of Punjab;(') ·Bharwad Mepa Dana & Anr. v. State· of Bombay;(') Kartar Singh v. State of Punjab;(') Mohan Singh v. State of Punjab;(') Ram Bi/as Singh & Ors. v. State of Biliar.(') In the case of Ram Bi/as Singh (supra) previous decisions of this r Court on the question argued before us have been considered at some· length and a passage from Krishna Govind PatU's c•ase (supra) was also quoted. In none of these cases was it decided that where, out of abm1dance of caution, a large number of accused persons obtained an acquittal with the result that the number of those whose participation is established beyond reasonable doubt is reduced to les than five, but, at the same time, it is clear that the total number of assailants G could not be less than five, the convicted accused persons must necessarily get th benefit of doubt arising in the case of the acquitted· accused perso,is. A case like the one before us stands on the same footing as any other case where there is certainty that the number of participants was not. less than five but there is doubt only as to- --(!)[19131' i-s.c.R. p. 291 @ 3ol & 303. (2) [1974) 2 S.C.R. p. 518. H (3) [1964] (l) S.C.R. 678. (4) [19541 S.C.R. 145. (5) [1960] 2 S.C.R.172. (6) [1962] 2 S.C.R. 395. (7) [1962] Suppl (3) S.C.R. 848. (8) [1964] (l) S.C.R. 775.
SUPREME COURT REPORTS
596
~ 1 •
[1976] 1 S.C.R.
A
1he identity of some of the participants. It h•as to be remembend that doubts may arise with regard to the participation of a particular accused person in circumstances whose benefit ca.n 011ly be reaped by the accused who raises such doubt. Doubts may also arise about the veracity of the whole prosecution version and doubts about the partici· pation of individual accused persons may contribute to the emergence of such doubts which may cover and engulf the whole case. Nevertheless, if, as in the instant case, the Courts, whose duty is to separate the chaff from the grain, does hold that the convicted persons were certainly members of an unlawful assembly which must have consisted of more than five persons, we do not see any principle of law or justice which could stand in the way of the application of Section 149 I.P.C. for convicting those found indubitably guilty of participation in carrying out of the common object of an unlawful assembly.
The only remaining question arises from the age of Om Pal Which, at the time of·trial, was fou'ild by the Trial Court to be about 15 years. This means that Section 29 of the Uttar Pradesh Children Act, 1951, was applicable to the case. This Section reads as follows :
"29. Commitment of child to approved school. ....... . '(!) Where a. child is found to have committed an offence punishable with transportation or imprisonment, the Court, if satisfied on inquiry that it is expedient so to deal with the -child, may order him to be scat to an approved school for such period of stay as will not exceed beyond the time when the child· will attain the age of 18 years or for a shorter period, the reasons for such period to be recorded in writing. ( 2) Where prior to the commencement of this Act a youthful offender has been sentenced to transportation or imprisonme'ilt, the State Government may direct that in lieu of undergoing or completing such sentence he shall, ii under the age. of sixteen years, be sent to an approved school, and thereupon the offender shall be subject to all the provisions of this Act as if he !rad been originally ordered to be detaliled in such school."
This. question was not arised earlier so that the Trial Court or the High Court may take the action it was open to the Courts to take after due inquiry. Such action, if considered expedient, could only be to send the appellant to an approved school. We may observe that, although the ap.Pellant Om Pal was said to be armed with a lathi, no specific part was assigned to him by any prosecutio"1 witnesses. He was bound, with the background of hostility ·between two sides and
B
... '-( C
1 D
E f F • G
H
DHAR.AM PAL V. U.P. STATE (Beg, J.)
597
r •
'
P.H.P.
Appe(l/ dismissed~
i
>
3 issues framed by the court
Whether the conviction under Section 149 IPC is sustainable when 14 out of 18 accused were acquitted, reducing the proven number of assailants below five.
Whether the principle of vicarious liability (common intention) requires a mandatory conviction of five persons irrespective of who is acquitted.
Whether Section 29 of the U.P. Children Act, 1951, applies to an appellant aged 15 years whose case was not raised earlier.
Colour shows how this judgement treated each authority
Yeshwant & Anr. v. State of MaharashtraDistinguished¶120
Yeshwant & Anr. v. State of Maharashtra [1973] 1 S.C.R. 291 · Who else cites this
Sukh Ram v. State of U.P.Distinguished¶120
Sukh Ram v. State of U.P. [1974] 2 S.C.R. 518 · Who else cites this
Krishna Govind Patil v. State of MaharashtraDistinguished¶127
Krishna Govind Patil v. State of Maharashtra
Dalip Singh & Ors. v. State of PunjabReferred¶129
Dalip Singh & Ors. v. State of Punjab
Bharwad Mepa Dana & Anr. v. State of BombayReferred¶129
Bharwad Mepa Dana & Anr. v. State of Bombay
Kartar Singh v. State of PunjabReferred¶129
Kartar Singh v. State of Punjab
Mohan Singh v. State of PunjabReferred¶129
Mohan Singh v. State of Punjab
Ram Bias Singh & Ors. v. State of BiharReferred¶129
Ram Bias Singh & Ors. v. State of Bihar
3 provisions across 2 enactments
DHARAM PAL
BIRBAL
DARYAO SINGH
OM PAL
THE STATE OF U.P.
M. H. BEG
P. N. BHAGWATI
R. S. S. XIICARIA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
