Mohan Singh v. State of Punjab

Supreme Court of India · 15 March 1962 · 5 judges · 1963 AIR 174; 1962 SCR Supl. (3) 848

Where the charge and evidence named only five members of an unlawful assembly and two were acquitted, Section 149 IPC could not apply to the rest, but the appellants' murder conviction was altered to Section 302 read with Section 34.

Facts

Five persons were charged with rioting and with murder read with Section 149 IPC after a man who had obtained warrants of possession over land held by two of the accused was attacked with lathis and killed, and his companion injured. The trial court acquitted two of the accused, convicted one under Section 302 for the fatal blow, and convicted the two appellants under Section 302 read with Sections 149 and 147. The High Court confirmed the convictions. In the Supreme Court it was accepted that both the charge and the evidence referred only to the five named persons. The appellants argued that once two were acquitted, Section 149 could not apply.

Questions before the Court

Can members of an unlawful assembly be convicted with the aid of Section 149 IPC when, of five persons named in the charge, two are acquitted and the charge and evidence are confined to the named persons?
Can the conviction be altered to one under Section 302 read with Section 34 IPC, and how does common intention differ from common object?

What the Court held

Under Section 141 IPC an unlawful assembly must have five or more members. Where the charge names five persons, the evidence is confined to them and two are acquitted, the assembly must be taken to consist of three, and Section 149 cannot be invoked against the rest.
Section 149 can still apply even though fewer than five are convicted where the charge and evidence show that others, absconding or unidentified, made up the number of five or more. The court must be careful before finding unnamed members, but there is no legal bar to such a finding.
Common intention under Section 34 differs from common object under Section 149. It means action in concert under a pre-arranged plan and a prior meeting of minds, and should be inferred only when it is a necessary inference from the circumstances.
The appellants shared the motive, lay in wait armed with lathis, chased and surrounded the deceased and fled together, so they shared the common intention to kill. Their conviction was altered to Section 302 read with Section 34 with the same life sentence; the conviction under Section 147 was set aside.

Why it matters

The judgment sets out the categories of cases in which Section 149 IPC can or cannot be applied when fewer than five persons are convicted, depending on whether the charge and evidence point to other absconding or unidentified members. It also explains the difference between common object and common intention, and shows that a conviction under Section 302/149 can be altered to Section 302/34 where common intention is proved.

In the Court's words

Copied from the official judgment; each passage links to its page.

“We have already observed that the point raised by the appellants has to be dealt with on the assumption that only five persons were named in the charge as persons composing the unlawful assembly and evidence led in the course of the trial is confined only to the said five persons. If that be so, as soon as two of the five named persons are acquitted, the assembly must be deemed to have been composed of only three persons and that clearly cannot be regarded as an unlawful assembly.”

Gajendragadkar, J.Page 6 of the judgment

“Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving, before the court less than five persons to be tried, then s. 149 cannot be invoked.”

Gajendragadkar, J.Page 7 of the judgment

“But, nevertheless, the common intention which is the basis of s. 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a pre-arranged plan and that must mean a prior meeting of minds.”

Gajendragadkar, J.Page 9 of the judgment

Provisions interpreted

Section 149, Indian Penal CodeNow: BNS 190 (NCRB correspondence table)
Section 141, Indian Penal CodeNow: BNS 189 (1) (NCRB correspondence table)
Section 34, Indian Penal CodeNow: BNS 3(5) (NCRB correspondence table)
Section 302, Indian Penal CodeNow: BNS 103 (NCRB correspondence table)

Case and bench

Parties: Mohan Singh v. State of Punjab
Case: Criminal Appeal No. 186 of 1960
Decided: 15 March 1962
Bench: Gajendragadkar, P.B., Aiyyar, T.L. Venkatarama, Sinha, Bhuvneshwar P. (CJ), Wanchoo, K.N., Ayyangar, N. Rajagopala
Opinions: Unanimous. Judgment of the Court delivered by Gajendragadkar, J.