LexMOHAN SINGH versus STATE OF PUNJAB
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
1962
Orisso CtmmJ Lttl.
v.
Uni0tt of lrutia
AfyarJ.
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Mo1d114
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848 SUl'l\E.ME COlJRT l{EPORTS [Hlli2J SUPP.
be said to be reasonable and must be struck down
as not falling within the protection afforded by
Art. HJ (6).
In the result we hold that the notifiuat.iuns
dated January I 5, 1958, and Dcocmbf)J' 2, 1960, are
unconstitutional and
void.
The
petitioners are
entitled to their costs.
PetitWri allowed .
•
MOHAN SINGH
v.
STATE OF PUNJAB
( B. P. Sr XHA, C. J., P. B. GAJE!WRAGADKAR, K. N.
WANCHoo, N. RAJAGOl'ALA AYYANOAR and
1'. L. V};l\KATARAMA An:AR, JJ.)
Cri1nit1al
Liability-Members of u11/auful
assembly-
M aintainahility of conviclion-Cou11nou obejct
and
common
i?ltention-Di•tinction-A/teration of w1.viction-lndian l!enal
Code 1860 (Act 46 of 1860). ss. 302, 149, 34.
The two appellants, who were tried with three others,
were convicted under s. 302 read withs. 149 ands. 147 of the
h1dian Penal Code. Two of these five persons tried together
were acquitted.
In the charge these five accused persons and
none others wc:rc mentioned as forn1ing the unlawful assembly
and the evidence led in the case was confined to them alone.
The facts proved in the case unmistakably showed that the
two appellants and the other convicted person, who inflicted
the fatal blow, were actuated by the common intention of
fatally assulling the deceased. It was contended in this Court
that the conviction of the appellants under s. 302 read with
s. 149 of the Indian Penal Code was not sustainable in law in
view of the acquittal of two of the five accused persons who
were alleged to have formed the unlawful assembly.
Held, that the contention must prevail and the convic-
tion altered to one under '· 302 read with s. 34 of the Indian
Penal Code.
Section 149 of Indian Penal Code prescribes vicarious or
constructive criminal liability for members ofan unlawful
3 S.C.R.
SUPREME COURT REPORTS
84'.!i
assembly which under s. 141 must consist of five or more
persons. Consequently, as so.on as, in the present case, two of
accused persons were acqmtted, s. 141 ceased to apply and
s. 149 became inoperative.
Jn dealing with the applicability of s. 149 of the Indian
Penal Code, one has to remember the several categories of
cases that come up before the courts for decision thereunder.
Dalip Singh v. State ~f Pun.iab, [1954] S.C.R. 145 and
Bl,iarwadMepa Dana v. Stale of Bombay, [1960] 2 S.C.R. 172,
referred to.
Kartar Singh v. Slate of Punjab, [1962] 2 S.C.R. 395,
explained.
Likes. 149 of the Indian Penal Code, s, 34 of that Code
also deals with cases of constructive liability.
But the essen ..
tial constituent of the vicarious crhnin.al liability under s. 34
is the existence of common intention.
Being similar in so1ne
ways, the two sections may in some cases overlap.
Neverthe-·
less, common intention on which s. 34 has its basis is different
from the common object of unlawful assembly. Common
intention denotes action in concert and necessarily pestuiatcs
a pre-arranged plan, a prior meeting of minds and an element
of participation in action. The acts may be different and
vary in character but they must be actuated by the same
common intention, common inteqtion is different from the
same intention or similar intention.
Mahabub Shah v. King Emperor, ( 1945) L.R. 72 I.A.
148, referred to.
CRIMINAL APPELLATE JuRISDIOTION: Criminal
Appeal No. 186 of 1960.
Appeal by special leave from the . judgment
and order dated March 18, 1960, of the Punjab
High Court in Crimin'11 Appeal No. 1040of1959.
Raghubir Singh and R. S. Gheba, for the appe·
llants.
N. S. Bindra and P. D. Menon, for the respon-
dent.
1962. March 15. The Judgment of the Court
was delivered by
GAJENDRAGADKAR, J.-This appeal by special
leave arises out of a criminal case in which the
JY6~
M t1hon Singh
v.
Stale of Punjab
1 d1a1adkarJ.
J06Z
J\foluzn Singh
••
State of Punjab
Uojtntlrr1.r;adkar J.
850 SUPREME COURT REi>ORTs [1962] SuPP.
appellants Mohan Singh and Jagir Singh a.long with
three others wen· charged with h11.ving oommitted~
offences under s.J.:18 and s.302 read with s.149, as
1
well as s.32a, read with s.14!l of the Indian Penal
Code. The three olher pernnns who w1·rc thus
charged along with the two appellants werr. De.lip
Singh and two Piam Singhs who were the sons of
Cjagar Singh and Bahadur Singh respectively. Of
the five accusecl persons, JJalip Singh was also
charged Excerpt shown. Read the full judgment & AI analysis in Lexace.