KARNAL SINGH AND ANOTHER versus THE STATE OF PUNJAB

Citation: [1954] 1 S.C.R. 904 · Decided: 29-01-1954 · Supreme Court of India · Bench: NATWARLAL HARILAL BHAGWATI · Disposal: Dismissed

Judgment (excerpt)

1954 
Ja11uary 29. 
904 
SUPREME COURT REPORTS 
[1954J 
KARNAL SINGH AND ANOTHER 
f), 
THE STATE OF PUNJAB. 
[BHAGWATI, JAGANNADHADAS and 
VENKATARAMA AYYAR JJ.J 
Indian Penal Code (Act XLV of 1860), ss. 34 and 149-Scop<" 
of-Charge under s. 302 read with s. 149-Conviction under s. 302' 
1·ead tvith s. 34-Whether valid. 
It was contended that the conviction of the appellants under 
s. 302, Indian Penal Code, read with s. 34 was illegal when they 
had been charged only under s. 302 read with s. 149 
because 
the 
scope of s. 149 was different from that of s. 34, 
that while what 
s. 149 required was proof of a common object, it would be neces-
sary under s. 34 to establish a common intention and that 
there-
. fore when the charge against the accused was under s. 149, it could' 
not be conv~rted in appeal into one under s. 34. 
Held, that it is 
true 
that there 
is substantial 
difference 
between the 
two sections 
but they also to 
some extent overlap 
an<l it is a question to be determined on the facts of each case 
\vhether the charge under s. 149 overlaps the ground covered by 
s. 34. 
If the common object which is the subject.matter of the 
charge under s. 149 docs not necessarily involve a common inten· 
tion, 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 .. 
There is no such broad proposition of law that there can be no· 
recourse to s. 34 when the charge is only under s. 149. 
Whether such recourse can he had or not must depend 
facts of each case. 
The facts of the present case \Varranted such a recourse. 
Dalip Singh v. 
State of 
Punjab (A.LR. 1953 
S.C. 
Barendra Kumar Ghosh v. 
EmPeror (I.LR. 
52 Cal. 
197 
Lachman Singh v. The State ([1952] S.C.R. 839) referred to. 
on the-
364),. 
P.C.),. 
CruMINAL APPELLATE 
JuR1so1cr10N : 
Criminal Ap-
peal No. 64 of 1953. 
Appeal by special leave from the Judgment and 
Order dated the 9th June, 1953, of the High Court of 
Judicature for the State of Punjab at Simla (Falshaw 
and Kapur JJ.) in Criminal Appeal No. 60 of 1953 
S.C.R. 
SUPREME COURT REPORTS 
905 
arising out of the Judgment and Order dated the 15th 
December, 1952, 
of 
the 
Court of 
the Additional 
Sessions Judge, Ferozepore, in Sessions Case No. 50 of 
1952 and Trial No. 57 of 1952. 
fai Copa! Sethi (R. L. Kohli, with 
him) for the 
appellants. 
.Porus A. Mehta for the respondent. 
1954. 
January 29. 
The Judgment of the Court was 
delivered by 
VENKATARAMA 
AYYAR J.-This is an appeal by 
special lea\·e 
by 
Karnaii Singh and Malkiat Singh 
against the 
judgment of 
the High Court of Punjab 
confirming their conviction by the Additional Sessions 
J i!dge of F erozepore under section 302, Indian Penal 
Code, and the sentence of death passed on them. 
The facts as found by the courts below are as 
follows: There had been long standing 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 ot crimes, 
~nd proceed-
ings in court. 
On the 27th 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 a]cpellants and . their 
men came to the place armed with rin~s, got on the 
roof of the house of Gurbaksh Singh and challenged 
him 
to 
come 
out. 
Gurbaksh 
Singh 
and 
Mst. 
Bholan went to the kotha and bolted the door from in-
side. 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 building. 
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 sub-
sequently 
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 neigh-
bour, managed to slip out of the village and reported 
the occurrence at the police station at Niha

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