Holding

The conviction under Section 304 Part II read with Section 149 IPC is upheld, but the rigorous imprisonment is reduced to five years.

Summary

Six accused were tried for the murder of Sajjan Singh and injuries to two other persons. The trial court convicted all under Section 302 read with Section 149 IPC and sentenced them to life imprisonment along with other terms. The High Court altered the murder conviction to Section 304 Part II and, for five of the accused, to Section 304 Part II read with Section 149, imposing seven years rigorous imprisonment. Two appellants (Suresh Singh and Jagbir Singh) challenged the sentence, arguing that they were convicted only under the vicarious liability of Section 149 and not for a substantive offence, and therefore deserved a more liberal sentence. The Supreme Court held that the conviction under Section 304 Part II read with Section 149 was valid, but reduced the rigorous imprisonment to five years, keeping the other convictions and fines unchanged. The appeal was partly allowed and disposed.

Issues considered

Whether the conviction of the appellants under Section 304 Part II read with Section 149 IPC is legally valid despite the trial court’s original conviction under Section 302 read with Section 149.
Whether a liberal view in sentencing is warranted when the conviction is based on vicarious liability under Section 149 rather than a substantive offence.
Whether the seven‑year rigorous imprisonment awarded by the High Court is excessive and should be reduced.

Legislation cited

Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 304(Part-II), s. 323, s. 324, s. 326

Subjects

murderculpable homicide not amounting to murderSection 149 IPCvicarious liabilitysentencingliberal viewrigorous imprisonmentconvictionappeal

Judgment

t
I

SURESH SINGH AND ANR. A
.,..J v.
STATEOFHARYANA

OCTOBER 1, 2007
B
.[C.K. THAKKER AND D.K. JAIN, JJ.)

>- Penal Code, 1860:
s. 304 (part-II) rlw s. 149-Conviction under-Plea for a liberal c
view in awarding punishment-Conviction u/s 3021149 converted by
High Court into one u!s 304 (part-II) with regard to one accused and
304 (part II) rlw s. 149 with regard to other five accused-Slentence
of 7 years RI imposed on all the six accused-Accused convicted uls
304 (part JI) died-Three others having served the sentence, their D
appeal became in.fructuous-Remaining two pleading/or a liberal view
_;...
in awarding punishment on the ground that they were not convicted
for the substantive offence but with the aid ofs. 149-HELD: On facts,
sentence reduced to RIfor 5 years.
E
The two appellants (A-3 and A-6) were prosecuted with four others
(A-1, A-2, A-4 to A-5) for causing the death of the son of the complainant
(PW-3) and grievous injuries to PW-3 and PW-5. The trial Court
convicted all the six accused inter alia uls. 302 r/w s. 149 IPC and
sentenced each of them to imprisonment for life. On appeal, the High
F
Court converted the conviction of A-1 to one u/s. 304 (part-II) IPC and
that of A-2 to A-5 to one u/s. 304 (Part-II) read with s.149 IPC, and
sentenced all the accused to rigorous imprisonment for seven years.
However, the accused, not satisfied with the judgment ofthe High Court,
filed the instant appeal.
G
During the pendency of the case before the Supreme Court, A-1
died; and A-2, A-4 and A-5 having already undergone the sentence
awarded, their appeal became infructuous.

495 H
~
SUPREME COURT REPORTS [2007] 10 S.C.R. \
496

A It was contended for the remaining two appellants (A-3 and A-6)
that since the conviction as recorded by the High Court against them ~
was not for a substantive offence punishable u/s. 304 (part-II) IPC, but,
as members of unlawful assembly, for an offence punishable u/s. 304
(Part-II) r/w s. 149 IPC, a liberal view be taken in awarding the
B punishment

Disposing of the appeal the Court

HELD: 1.1. It cannot be said that by recording a finding of guilt '"""'
against the appellants, any illegality has been committed either by the
C trial court or by the appellate court. both the Courts considered the
evidence on record, including substantive evidence oftwo injured eye-
witnesses, PW3 and PWS and believed them. Injuries have been
established through the evidence of the doctor (PW-11 ).
{Para 16] (504-F,G]
D
1.2. Regarding sentence, however, it has to be kept in mind that
neither of the appellants has been convicted for a substantive offence
punishable under Section 304 (par1 II) IPC. Both ofthem were convicted
under the vicarious Iiablility mentioned in Section 149, IPC and they were
E accordingly convicted for an offence not amountingto murder punishable
under Section 304 (part II) read with Section 149, IPC along with other
offences. Therefore, ends of justice would be met if instead of rigorous
imprisonment for seven years as imposed by the High Court for the said
offence, the appellants are ordered to undergo rigorous imprisonment
F for five years. Accordingly, the conviction recorded by the High Court
against the appellants for an offence punishable under Section 304 (part
II) read with Section 149, IPC is maintained, but they are ordered to
undergo rigorous imprisonment for 'five years instead of seven years.
Conviction, sentence and fine for other offences, imposed on the
G appellants by the High Court call for no interference and accordingly
that part ofthe order is confirmed.
[Paras 17 and 18] (SOS-A, B, C]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1313 of 2007.
H
f SURESH SINGH v. STATE OF HARYANA [THAKKER, J.] 497

From the Judgment and Order dated 28.02.2006 of the High Court A
of Punjab and Haryana at Chandigarh in Criminal Appeal No. 50-DB of
1997 and Criminal Revision No. 528 of 1997.
Kawaljit Kochar and Kusum Chaudhary for the Appellants.
Rajeev Gaur 'Naseem', Rajesh Ranjan, and T.V. George for the B
Respondent.
~ The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. Leave granted.
c
2. The present appeal arises out of judgment and order dated
February 28, 2006 in Criminal Appeal No.50-DB of 1997 passed by
the High Court of Punjab and Haryana convicting the appellants and other
accused persons for various offences. The said appeal was filed by the
accused persons against their conviction and sentence recorded by the D
Addl. Sessions Judge, Bhiwani on December 12, 1996 and December
17, 1996 in Sessions Case No. 5of1994.
3. The case of the prosecution was that on June 29, 1993 between
7.00 and 8.00 a.m., one Daryav Singh (PW3) and his two sons, Sajjan
Singh (since deceased) and Gaje Singh (PW5) were weeding out the wild E
grass from their cotton field. Devender Singh (accused No. I), Suresh Singh
(accused No.3), Shamsher Singh (accused No.5), Jai Bhagwan (accused
No.2), Jai Pal Singh (accused No.4), Jagbir Singh (accused No.6) and
one Raj Kumar (a juvenile whose case had been referred to the Juvenile
Court) came there. Devender Singh and Jagbir Singh were armed with F
pharsas and other four accused were armed with jaillies. They challenged
Daryav Singh, Sajjan Singh and Gaje Singh, and exhorted that they would
teach a lesson to the complainant side for getting the land of one Pooran
transferred in favour of the sons ofDaryav Singh and they would also
uproot their Bajra crops. They also stated that they would cause injuries G
to complainant side and would obtain land of Pooran. PW3-Daryav Singh
told the accused persons not to quarrel and to go back. The accused
persons, however, refused to do so. Deceased Sajjan Singh and PW5-
Gaje Singh also told the accused persons to refrain from giving abuses
H
498 SUPREME COURT REPORTS [2007] 10 S.C.R.

A but accused No.6 (appellant No.2) gave a pharsa blow on the head of
Sajjan Singh. Accused No.5 gave ajailly blow on the neck of PW5-
Gaje Singh. Accused No.3-Suresh Singh (appellant No.I) gave a blow
from the reverse side ofjailly on the shoulder of PW3-Daryav Singh.
Raj Kumar also administered ajail/y blow on the right knee of PW3-
B Daryav Singh. Daryav Singh fell down. Accused No.2-Jai Bhagwan gave
ajailly blow to deceased Sajjan Singh on his shoulder. Accused No.5-
Shamsher Singh also gave a jailly blow to deceased Sajjan Singh which
hit on his back. Accused No.2-Jaipal gave a }ailly blow to deceased
Saijan Singh. Sajjan Singh fell down. Accused No.1-Devender Singh gave
C a pharsa blow on the left foot of PW5-Gaje Singh. Accused No.3-Suresh
Singh (Appellant No. I) gave a jailly blow on the shoulder of PWS-Gaje
Singh. Accused No.4-Jai Pal Singh gave ajailly blow to PW5-Gaje
Singh. Accused No.5-Shamsher Singh gave ajailly blow on the back of
PW5-Gaje Singh. The injured raised an alarm which attracted Rajbir and
D Raghbir who rescued the injured. The accused then fled away with their
weapons. Rajbir and Raghbir took the injured to General Hospital,
Charkhi Dadri where PWl 1-Dr. S.C. Gupta examined PW3 Daryav Singh
on the same day i.e. on June 29, 1993 and found the following injuries.
"On general examination:- General conditionof~he patient was
E
guarded. Patient was conscious. B.P. Was 110/70 mm of Hg.
(Blood from the nose and mouth was present).
1. An incised wound size 6 ems x 1.5 ems bone deep on the
middle of the skull extending from the middle to the occipi~ ·
F
region of the skull. Margins were smooth and regular. Hair parts
were present inside the wound. Profused bleeding was present.
Advised Xray skull AP and lateral view.
2. Reddish contusion on the anterior aspect of the right thigh size
G 6 ems x 4 ems extending above downward. Movements were
painful but were not restricted.
3. Reddish contusion on the dorsal aspect of the left forearm near
the wrist joint. It was tender on touch and size was 4 ems x 2
ems. Movements were painful but not restricted".
H
i
......
SURESH SINGH v. STATE OF HARYANA [THAKKER, J.] 499

All the injuries were kept under observation. Their probable A
duration was within 24 hours. Injury No. I was found with sharp
weapon while injuries Nos. 2 and 3 were found with blunt weapon.
Exhibit P.J is the copy of medico-legal report. Exhibit P.J/I is the
pictorial diagram showing the seats of the injuries.
B
4. Dr. Gupta also examined deceased Sajjan Singh and found the
following injuries.
"On general examination:- General condition of the patient was
guarded. Patient was unconscious. Pupils were sluggishly reacting
to light. Bleeding from the nose and mouth was present. B.P. Was C
I I 0170 mm of Hg. Pulse was 96 per minute.
1. An incised wound size 8 ems x I .5 ems into bone deep on
the middle of the skull extending introposteriorly. Margins were
smooth and regular hairfullicles were cut and embedded in the
wound. Profused bleeding was present. Advised X-ray skull D
A.P and lateral view.
2. Multiple reddish contusions of varying size on the back at the
various places.
,.,
.) . Reddish contusion 6 ems x 3 ems on the left calf region. Tender E
on touch. Movements were painful but not restricted.
4. Reddish contusion on the top of the right shoulder joint.
.....le Movements were painful. Size was 4 ems x 2 ems extending
above-onward towards the back." F
Injuries Nos. I and 4 were kept under observation while injury Nos.
2 and 3 were found simple. Probable duration of all the injuries
was within 24 hours. Injury No. I was caused with sharp weapon
while injuries Nos. 2, 3 and 4 were caused with blunt weapon.
G
5. Dr. Gupta also medically examined injured Gaje Singh (PW5) and
found the following injuries.
"General condition was guarded. Patient was conscious. No
neurological deficient. Pupils were normal and well reacting to light
H
500 SUPREME COURT REPORTS [2007] 10 S.C.R.

A both sides. B.P. Was 116/80 mm of Hg. Pulse was 86 per minute.
1. A punctured wound of size .75 in diameter depth (?) on the
left side of the neck laterally 4 cm below the angle of the
mandible. Margins were irregular. Fresh bleeding was present.
Injury was kept under observation subject to Surgeon's
B
opinion.
2. Contusion on the dorsal aspect of the left hand reddish in
colour. Siz.e was 3 ems x 2 ems. Tender on touch. Movements -(
were painful. Injury was kept under observation.
c 3. A lacerated wound on the middle ofthe left hand on the palmer
aspect Bleeding was present. Movements were painful but not
restricted.
4. An abrasion with contusion having clotted blood on the left
D foot. Movements were painful but not restricted.
5. A reddish contusion 3 ems x 12 ems extending medio-laterally
on the back. Tender on touch."
Injuries Nos. I and 2 were kept under observation. Injuries Nos.3,
E
4 and 5 were found simple in nature. Probable duration of all the
injuries was Within 24 hours. Injury No. I was found with blunt
weapon while injuries Nos.2, 3, 4 and 5 were found with blunt
weapon.
6. After usual investigation, charge-sheet was submitted. The matter
F was committed to the Court of Sessions and charges were framed against
the accused persons for offences punishable under Sections 147, 148,
149, 302, 323, 324 and 326 of the Indian Penal Code (IPC).
7. The accused pleaded not guilty to the charges and claimed trial.
G 8. The Addi. Sessions Judge (1st), Bhiwani appreciated the evidence
on record and held that the charges against the accused persons were
proved. He, therefore, recorded an order of conviction against the
accused on December 12, 1996. In the operative part of the order, the
learned Judge observed:
H
'
~
J SURESH SINGH v. STATE OF HARYANA [THAKKER, J.] 501

"As such, in view of the above discussion, I find that all the six A
accused are guilty of the offence under Section 302 read with
Section 149 IPC for the murder of Sajjan Singh, son of Daryav
Singh; under Section 148 IPC for the offence of rioting; under
Sections 323, 324 read with Section 149 IPC for causing injuries
to Daryav Singh and Gaje Singh, PWs. I convict all the six accused B
under these sections accordingly".
9. The learned Judge, after recording the finding of guilt, adjourned
~
the matter to December 17, 1996 for the purpose of considering the
quantum of sentence. On that day, i.e. on December 17, 1996, he heard
the accused persons on quantum of sentence and passed the following
c
order.
"Above mentioned six accused have been convicted by me under
Section 302 read with Section 149 IPC, 324, 323 read with
Section 149 IPC and 148 IPC vide my detailed judgment of D
12.12.1996. All the accused have been heard on the question of
;._
sientence. All the accused are young persons between the age of
25 and 35. They have stated that they are the bread winners for
the family and their dependents. Taking into consideration all the
aspects of the case including the responsibilities of the accused E
towards their dependants and their young age etc., I take a lenient
vi,ew and sentence each accused to imprisonment for life under
Section 302 read with Section 149 IPC. Each accused shall also
pay a fine of Rs. l 000/- (Rupees one thousand only) under the said
-4,
sections. In default of payment of fine, the defaulting accused shall F
suffer further rigorous imprisonment for two years.
2. Each accused is sentenced to rigorous imprisonment for one year
under Section 148 IPC.
3. Each accused is sentenced to rigorous imprisonment for one year G
~ under Section 324 read with Section 149 IPC. Each of accused
is also punished with fine ofRs.500/- (Rupees five hundred only)
under the said sections. In default of payment of fine, the defaulting
accused shall suffer further rigorous imprisonment for three months.
H
502 SUPREME COURT REPORTS (2007] 10 S.C.R.

A 4. Each of six accused is sentenced to the rigorous imprisonment
for six months under Section 323 read with Section 149 IPC.
5. All the substantive sentences against each of the accused shall
run concurrently.
B 6. The case property be disposed of according to rules. File be
consigned to record room".
10. Being aggrieved by the order of conviction and sentence, all the
accused approached the High Court of Punjab and Haryana by preferring
C an appeal. The Division Bench of the High Court agreed with the finding
of guilt recorded by the trial Court. It observed that there was no infirmity
so far as conviction recorded by the trial Court was concerned. The High
Court, however, partly allowed the appeal filed by the accused altering
the conviction from Section 302 read with Section 149 IPC to Section
D 304, Part II and Section 304, Part II read with Section 149 IPC. The
High Court observed:
"So, in this case, in our opinion, offence under Section 304,
Part II of the Code is made out. Offence under Section 302 of
the Code is not made out.
E
The appeal is, therefore, partly allowed. The impugned
judgment and sentence order are modified. Devender Singh
(appellant) is convicted under Section 304, Part II of the Code.
All the remaining appellants are convicted under Section 304, Part
F II read with Section 149 of the Code. Each of them is sentenced
to undergo R.I for seven years and to pay Rs.1,000/- (each) as
fine and in default of payment of fine to further undergo R.I for six
months. Each of them is also convicted under Section 148 of the
Code and sentenced to undergo R.I for one year. Each of them is
G also convicted under Section 324 read with Section 149 of the
Code and sentenced to undergo R.I for one year and to pay
Rs.500/-(each) as fine and in default of payment of fine to further
undergo R.I for three months. Further, each of them is convicted
under Section 323 read with Section 149 of the Code and is
sentenced to undergo R.I for six months. All the substantive
H
SURESH SINGH v. STATE OF HARYANA [THAKKER, J.] 503

sentences are ordered to run concurrently. The amount of fine, if A
realized, would be paid to the heirs of Sajjan Singh.
Appellants Suresh Singh, Sharnsher, Jai Bhagwan, Jai Pal and
Jagbir Singh are on bail. The Chief Judicial Magistrate, Bhiwani,
would issue their warrants of arrest and would commit them to jail B
to undergo the remaining part of their sentence. Appellant Devender
Singh is confined in jail. The Chief Judicial Magistrate, Bhiwani,
would issue fresh warrants of Devender Singh and send the same
to jail, where he is lodged".

11. Being aggrieved by the above order, all the six accused C
approached this Court. On September l 4, 2006, when the matter was
placed before the learned Chamber Judge, a prayer for exemption from
surrendering was made which was rejected. Four weeks time was granted
to the appellants to file proof of surrender.
D
12. It appears that thereafter on January 22, 2007, Criminal
Miscellaneous Petition No. 1497 was filed wherein it was stated that
Devender Singh (accused No. I) had expired. Death certificate was also
produced along with the application. It was further stated that Jai Bhagwan
(accused No.2), Jai Pal (accused No.4) and Shamsher Singh (accused E
No.5) be permitted to withdraw from Special Leave Petition since all the
three had already undergone the sentence and special leave on their behalf
had become infructuous. The said application was allowed by the Court
and the prayer was granted. Thus, out of six accused only two have
remained viz., Suresh Singh-Appellant No.I (accused No.3) and Jagbir F
Singh-Appellant No. 2 (accused No.6).
13. We have heard learned counsel for the parties.
14. The learned counsel for the appellant submitted that so far as
the fatal blow to deceased Sajjan Singh is concerned, it was administered G
by Devender Singh (accused No.I). The trial Court, therefore, recorded
a conviction of all the accused for an offence punishable under Section
302 read with 149, IPC. An appeal against the said order was allowed
by the High Court and the conviction from Section 302, IPC was altered
to Section 304, Part II, IPC. Whereas Devender Singh was convicted H
504 SUPREME COURT REPORTS [2007] 10 S.C.R.

A under Section 304, Part II, IPC, other accused were convicted for an
offence punishable under Section 304, Part II, read with Section 149,
IPC. All the accused were ordered to undergo rigorous imprisonment for
seven years. During the pendency of the matter in this Court, however,
Devender Singh (accused No. 1) died and accordingly appeal, so far as
B accused No.1-Devender Singh was concerned, got abated. Regarding
Suresh Singh-appellant No. l and Jagbir Singh-appellant No. 2
(accused Nos. 3 & 6 respectively), they had been convicted by the trial
Court for an offence punishable under Section 302 read with Section 149,
IPC and by the High Court, for an offence punishable under Section 304,
C Part II read with S~ction 149, IPC. The counsel, therefore, submitted
that the conviction as recorded by the High Court against the appellants
is not for a substantive offence punishable under Section 304, Part II,
IPC but as members of unlawful assembly for an offence punishable under
Section 304, Part II read with Section 149, IPC. It was, therefore,
D submitted that even if this Court is of the view that an order of conviction
recorded by the trial Court and confirmed by the High Court is in
consonance with law and the appellants are not entitled to acquittal, liberal
view may be taken in awarding punishment. It was also submitted that
the appellants were young when the offence was committed. They are
E the only bread winners of the family and the other family members are
dependent on them. Accused No.I is dead and accused Nos. 2, 4 & 5
have already undergone the sentence imposed on them. All these
. considerations are relevant for reducing the sentence.
15. The learned counsel for the respondent-State submitted that the
...r.
order passed by the trial Court and modified by the High Court calls for
no interference.
16. Having heard the learned counsel for the parties, i'l our opinion,
it cannot be said that by recording a finding of guilt against the appellants,
G any illegality can be said to have been committed either by the trial Court
or by the appellate Court. Both the Courts considered the evidence on
record, including substantive evidence of two injured eye-witnesses, PW3-
Daryav Singh and PW5-Gaje Singh and believed them. Injuries have been
established through the evidence of PWl 1-Dr. S.C. Gupta. We are,
H
SURESH SINGH v. STATE OF HARYANA [THAKKER, J.] 505

therefore, of the opinion that both the Courts were right in recording a A ,
finding of guilt against the appellants.
17. Regarding sentence, however, we are of the view that the learned
counsel for the appellants is right in submitting that neither of the appellants
has been convicted for a substantive offence punishable under Section
B
304, Part II, IPC. Both of them were convicted under the vicarious liability
mentioned in Section 149, IPC and they were accordingly convicted for
an offence not amounting to murder punishable under Section 304, Part
II read with Section 149, IPC along with other offences. In our opinion,
therefore, ends ofjustice would be met if instead of rigorous imprisonment C
for seven years as imposed by the High Court for the said offence, the
appellants are ordered to undergo rigorous imprisonment for five years.
Conviction, sentence and fine for other offences, imposed on the appellants
by the High Court call for no interference and accordingly that part of
the order is confirmed.
D
> 18. For the foregoing reasons, the appeal is partly allowed. The
conviction recorded by the High Court against the appellants for an
offence punishable under Section 304, Part II read with Section 149, IPC
is maintained, but they are ordered to undergo rigorous imprisonment for
five years instead of seven years. E
19. The appeal is accordingly disposed of
RP. Appeal disposed of.