< ;

) I

>.y

S; C.R.

SUPREME COURT REPORTS 1191

to direct a retrial though this is. the rionnal course . when a jury frial is set aside on the grounds of i:nisdirection and non-direction. We tl).erefore discharge (nqt acquit) both the appellants leaving it to Government ither to drop t.he e.ntire matter or to poceed in such. manner as it may be advised.,. We do .this because the accused expressly asked that the • charge under the Prevention of Corruption Act shbuld be'' left over ·for a separate rial,. The two convictioµ:s re, ' therefore quashed and. also . the sentences: e. are . told that the first accused has already .served out his.; sentence. The fine if paid, will be refunded. The bail bond of the second accused will .be cancelled.

MAHANT SALIG RAM v.

MUSAMMAT MAYA DEVI.

' (~: ~· DAS, BHAGWAT! and SYED JAFER IMA¥ JJ.] '.'

Custom-succession-Non-ancestral property-Daughter virsus collateral within fourth degree-Saraswat Brahmins of Pathahl{ol •in the District of Gurdaspur-Riwaj-i-am-Entries ih'erein-Value of -Riwaj-i-am of Gurdaspur District of the year 1913-Whether a teliable document-,-Answer to questions 16 and 17.-Value of,

It is now well-settled that the general custoin of the Pnjab, being that a daughter excludes the collaterals from succession to the self-acquired property of her father. the initial onus, therefore, must, on principle, be on. the. collaterals to show that the general custom in favour of the daughter's succession to the. self-acquired property <1f her tather has been varied by a special local .custom . excluding tc, daughter which is binding on the parties. . . . , . •

It is also well-settled that though the entris in the' Riwaj-iam are entitled to an initial presumption in favour of their cortectne, s irrespective of the question whether or not the custom, 'as recorded, is in accord with the general custom, the quantum of evidence neces' sary to rebut that presumption will, however, 'vary with the facts and circumstances of each case.

Where, for instance; the Riwaj-iam lays down a custoin in consonance with the general agricultural custom of the province, very strong proof would be required to dis- place that presumption; but where, on the other hand, the custom as recorded in the Ri waj'i-am is opposed to the custom generally prevalent; the presumption will be considerably weakeneq, Likewise1 40-89 S. C. India/59

 Shreekanliak .Ramayya Munipalli v.

The Stale of

Bomha.J

Bose].

January ~1

!955

Maharit 'Sillig Ram

v; ' M11sammat Maya

Dtvi

where. ; he Riwaj-i-:an1 affects ad\ersely the fights Of the feffialeS who had ._no C!pportufiity tyhatever of appearing before the Revenue authOrities, the presumption will be \Veaker still and only a few instances would be sufficient -to rebut it.

~~ the Riw_j-i-am prOduced is a reliable and a trustworthy dot;:umeti.t, has'beeri. carefully prepared, and does not contain_ within its four corners cbntradictory s_taten1entiv ofcustom, and in "the op1n1on of the! Settleinent Officer is not a record of the wishes of the persons appearing before him as to what the custom sµould be, it would. he a pr, r:sumpive piece of evidence in proof of the special custom se~ up, which i~ left unrebutted by the daughters would lead to a result faVOUrable to the colfaterals. If, on the other liand, it is not a docU:rUent .of the kind indicated above, then such a Riwaj-i-am will have flo value at all as a presumptive piece of evidence.

The Riwaj-i-ams of the Gurdaspur district prepared by Mr.

Kennaway in 1913 in so far as they purport to record the local custom as to the right of the daughter to succeed to the self-acquired property of hr. father are not reliable and trustworthy documents.

The answer to question 16 al)d the answer to question 17 recorded therein do l).Ot ontain the correct record of custom.

Held,. that the appellant-a collateral within fourth degreea saraswat Br3.hmin of Pathankot in the district of Gurdaspur had failed to discharge the onus that initially rested on him that the responde(ll (the. daughter) was excluded by him in respect of. the noiian~tral .property. _of her father and that therefore np burden was y cast op her. of adducing evidence of particular instances. ,

The ge.neral custom laid down in para 23 of Rattigan's Dige$t of ustornary .Law that "a daughter is preferred to collaterals in regard to .the self-acquired property of her father" was approved by the .S:iprCffie Court.

' Buta Sing}l v. Mt. Harnamon (A.LR. 1946 Lah. 306); Gopal

Sigk v. Uiagar Singh ([1955] 1 S.C.R. 86), Mst. Subhani v. Nawab (I.L.R. [1940] Lah. 154), Beg v. Allah Ditta ([1916] L.R. 44 I.A. 89), Mt. Vaishno Ditti v. Mt. Rameshri ([1928] l.L.R. 10 Lah.

I 186; L.R. '55 I.A. 407), Khan Beg v. Mt.

Fateh Khatun ([1931] 'c l.L:R. 13 Lah. 276), fagat Singh v. Mst. fiwan (A.LR. 1935 Lah. 617), Qamar-ud-din v. Mt. Fathe Bano ([1943] J.L.R. 26 Lah. 110), Mohammad Khalil v. Mohammad Bakhsh (A.LR. 1949 E.P. 252), Gudit Singk v. Mt. Malan ((1924] 1.L.R. 5 Lah. 364), Kesar Singh ~

v. Achhar. Singh (A.LR. 1936 Lah. 68), Bawa Singh v. Mt. Partap

(A.LR. 1935 Lah.' 288), Kesar Singh v. Gurnam Singh (A.LR. 1935 Lah: 696), Najju v. Mt. Aimna Bibi (A.LR. 1936 Lah. 493), Gurdit Singh v .. Mt. 1vlan Kaur (A.LR. 1937 Lah. 90), Labh v. Mt. Fateh Bibi (A.LR. 1940 Lah. 436), Ramzan Shah v. Sohna Shah ([1889] 24 P.R. 191), Nanak Chand v. Basheshar Nath ([1908] 43 P.R. 15)

J_. and Mt, Mnmn v. Sawan Mal (A.LR. 1935 Lah. 453), referred to.

...

< -.r•

CrvrL

APPELLATE JuRISDICTION : Civil Appeal No. 118 of 1953. ·

Appeal from the Judgment and Deree dated.· te 28th July 1949 of the High Court of Jud.icaiure, for

the State of Punjab at Simla in Civil , Regular ·.First Appeal No. 365 of 1946 ari, ing out of the Decree dated the 31st day of . October 1946 of the Court of the Su\).

Judg~, 1st Clas~, Patankot in Suit No. 110 of 1945'.. '. .

Raji11der Narain, for the appellant. , K. L. Gosain (R. s. Narula and Naunit Lal, with

j ( ; ' him), for the respondent.

1955.

January 21.

The Judgment of the Court was delivered by

Ds J.-This is an itppeal by the plintiff i~.· a 'dit for a declaration of his title as collateral within four degrees of Gurdial, who . was a Sarswat. Brah'.mi~, resident of Pathankot. in the ' distriGt of 'Gurdlspu~ .nd the last male holder of tl1e .properties in suit. . ·. · ·

Gurdial died many years ago lea; ing. cetain' 'lands in villages Bhadroya, Kingarian • and Pathankot, Tehsil. Pathankot . in the district of . Gurdaspur, .. and le'aving him surviving his widow Musammat Melo an9 a daughter Musammat Maya Devi,. the . respond!; nt before us ... So111e time in the year 1926, a . portiop. of the land in village Bhadroya was . acquired for ... the Kangra. Valley Railway and a sum of Rs; l,539-7-0 was awarded to Musammat Melo. On an objection py the appellant this .amount .was deposited in. the Court of the Senior Subordtnate Judge, Gurdaspur, with :l' direction to pay the interest on this amount to Musammat Melo,

 On the 28th September 1944 Musammat Melo died and the . Revenue Courts ordered mutations in respect of the lands in the three villages in favour of the respondent .as the daughter of Gurdial.

On the 10th March 1945 the appeliani: filed the• s~!t out of which this appeal arises against the respondent for a declaration that he wa's entitled . to the , lands mentioned . in the plaint as well as to . the sum of

Mahant Salig Ram

v.

Muslltnmat M'!)la

 , Devi: ,,1

'.

Mahant---Salig Ram v.

Mwammat Maya

D6vi

Das J.

Rs. ,1,539-7;0. in preference to 1the respondent under' the

Y ., custom governing the parties whereunder . the colla'

t~als , of , the last male j:iolder excluded fhe daughter .. , . Te)·, espondent contes.ted.: th'.e suit ', mainly on, the

gr9nd.~~- . ,':1 . · . ·, , . - i, ,. (i). that the 'suit '.tor ~.· iPere' . declaration was , n?t maintairiable,. . . . . 1 • , • •'\- , (iif, t, hat, the . parties ~~e governed , by Hindu ' Law and not by custom, ~

(iii) that the appellant was not a collateral of Gwc)ial., at all, . . . .. , . .. _ (iv) that the properties in sui\ .were not an.cestr~I, and

 (v) that there was '.no custom whereunder the collaterals of the father who was the last tnak holder excluded the . daughter from succession to the , selfacq\lie; f prperty .'of, her fathr. ' . ' ' ' . . . '.fhe .. l!bqrdinate Judge in his judgment pron0ttnceq

Ol)- 'fhe lt ,9c\obef 1946 hld~ . . . .: , 1 .

(i) that the !, ands, in. , suit being_ in. posession o~ tenants, the suit .for a declaration of title thereto was riiiinfainable but the ' suit' for . a: declaration iii respect of 'the' "siiih of Rs .. 1,539-7-0 was not maintainable in'

v\w of:UJ.e prvisions of the Indian Succession Act rdating to succession' certificates, ·

' '(ii)'that 'the parties were governed by custom atld not by Hindu Law, . . .'. (iii)'tha~ 'the 'appellant. was. a. collateral of 'Gurdlal within four degrees, ' . . ' . . ' '' (iy) 'that the land in Khata' No.' 2 of die' village Kihgarian Was ancestral while the ' rest' of the lands ill: si.iit 'Were 1 n:ofl-allcestral, ad ' .,, '' i, ' (v)"that there was a custom according "to which,' a daughter was excluded from inheritance by the collaterals up to the fourth degree ·, •with respect to ahC!!St, ral "as weU •as self-acquired ·. property i:Jf the last male holder as laid down' in the case of Buta Si11gh v: Mt. Harnamon('). · · ' In .. the result, the, Subordinate Judge / decreed . the• suit in:-respe<; t only'.'of.. tile_ lands, iri sujt and order.ed. the parties to: beat. their , own costs. . ... , . .. 1 ·!-(I):A.I.ll.' 1946 Lah. 306.

 Against this judgment and decree the respondent preferred an appeal to the Lahore High Court.

The appellant preferred cross-objections against the .: order. as to costs and against the finding that the lands" 'in the three villages except the land in Khata' No., 2, of village Kingarian were non-ancestral. After . the . parti-: -. . ~: tion of India the . appeal was transferred . to the . High ' , Court of East Punjab. . . , · · " : • By its judgment dated the 28th July 1949 the <East' Punjab High Court allowed the appeal and dismissed the cross"objections on the following findings:- ·.. '1 •

(i) that the suit' for .: declaration of titl~ to tn~· lands was maintainable as all the lands 'in suit wer~' in the possession of tenants, · · · (i:i) that, the lands iri suit except the land in Khata No. 2 of village Kingarian were nonancetrai; and , ·(iii) that according to the custom' prevaiiing iri the Gurdaspui: district a daughter was entitled to. s:iJo ceed to non-ancestral property iri preference to col-· laterals even ' though ' they were within the fourth degree. · ' ' ' " 'r The, .High Court accordingly, modified the decree 'of the Subordinate Judge . to the extent. th.at the. decla~: ration . in the appellant'.s favour was made. to .. relate only to the land in. Khata No. 2 of village Kingarian which was held to be ancestral.

Qn an applica_tion: made by the appellant on the 26th August 1949 he.

High Court, by its order dated the . 5th June 1950, granted him a certificate of fitness to appeal. ' . to ' the Federal Court.

After the commencement of 'the Constittiti<?n of India the ; ippea~ has. cope before this ' Court for final disposal.· The firs~ question rai.sed before us . but not . v.ery

t: seriously pressed is as to whether the : lands in .sui, t. other than those in Khata No. 2 in village, _Kingarial). were ancestral or self-acquired.

Our , attentiop. , JJ.as not been drawn to any material. on tht; recon; l which. induces us .to take a view ' different from the view eon~ J.i currently taken by the . Courts _below.

We, _therefore, see n.o force or substance in this contention.

Mahant Sa/ig /Wm

Musammat Maya

Devi ·

Das Ji

Mahant Salig Ram v.

Musammat Mqya

:..,, Devi

Das J.

The main fight before us has been on the question as' to 'whether there is a_ custom in the Gurdaspur district governing' the parties under which a collateral within the fourth degree excludes the daughter of' the hist, male holder from succession to the -elf-acquired p'roperty _ of her father.

The customary --rights - of' succe_ssjcin of daughters as against the collaterals -of 'the father with reference to ancestral and non:ancestra:l lands are stated in paragraph 23 of Rattigan's Diget of Customary Law. It is categorically stated in subparagraph (2) of that paragraph that the daughter succeeds to the self-acquired property of the father in_ preference to the collaterals even though they are within -the fourth degree.

Rattigan's work has been. accepted by the Privy Council_ as "a book _ of _ U!).- questioned authority in the Punjab".

Indeed, the correctness of this paragraph was not disputed before this Court in Copa/ Singh v. Ujagar Singh(').

The general custom of the Punjab being that a daughter excludes the collaterals from succession to the selfacquired property of her father the initial onus, therefore, must, on principle, be on the collaterals to show_ that the general custom in favour of the daughter's succession to the self-acquired property of her father has been varied by a special local custom excluding the daughter which is binding on the parties.

Indeed, it -has been so held by the Judicial Committee in T:rfst.: Subhani v. Nawab( 2 ) and the matter is now We\1-se, ttled.

The appellant claims to have discharged this -initialonus in two ways, namely (1) by producing the Riwaji-am of the - Gurdaspur district prepared by Mr: Kennaway in 19i3 and (2) by adducing evidenc~ showing that the collaterals of one Harnam _ Singh, who was also a Sarswat Brahmin of the Gurdaspur district and indeed a member of this very family of Gurdial succeeded in -preference to his daughter. It is pointe9 out that no instance has been proved on the part of the respondent showing that the daughter ever excluded the collaterals from succession to the self-acquired property of the father.

The trial Court (1j [19551 1 s.c.R. se.

(2) LL.R. [1940) Lah. 154.

'r .,

as well as the High Court took the view that the evi~ dence as to the succession to the propertyof Harnam Singh was of no assistance to the appellant for the reason that the evidence was extremely sketchy; that it did not appear whether the properties left by Harnam Singh were ancestral or selfacquired or whether " the .. properties left by him were of any substantial , .._._._,, value at all as would have made it worth while for the daughter to claim the same in addition to the properties gifted to her by her father during his lifetime: Further, the. fact that the daughter did .not contest the suq.:ession of the collaterals to the pro-· perties left by fiqfllaIU Singh, eyen if they were selfacquired, might well have been the result, as held by the High Court, of sorrie family arrangement.

We find . ourselves in agreement with the Courts below that the instance relied upon by the appellant is wholly insufficient to discharge the onus that was on him to displace the general custom recorded in paragraph 23(2) of Rattigan's Digest of Customary Law.

The appellant contends that in any case he has fully discharged the onus that was on him by producing in evidence the Riwaj-i-am recording the. custom of the district of Gurdaspur which was compiled by Mr.

Kennaway in 1913.

Reference is also . made to the earlier Riwaj-i-ams of the Gurdaspur District prepared iri 1865 and 1893.

Answer to question

16. as recorded in the Riwaj-i-am of 1913 shows that subject to certain exceptions, which are not material for our purpose, the general rule is that the daughters are excluded by the widow and 1llale kindred of the deceased, however remote.

This answer goes much beyond the answers to the same question as recorded in the Riwaj-i-ams of 1865 and 1893 for those. answers limit the exclusion in favour of the male kindred up to certain specified degrees.

The answer to question 17 of the 1913 Riwaj-i-am like those to question 17 of the 1865 and 1893 Riwaj-i-ams clearlyindi<;:ates . that except amongst the Gujjars of the Shakargarh tehsil all the remaining tribes consulted by the Revenue authorities recognised no distinction as to the rights of the daughters to inherit (i) the immovable or

1955 ...

Mahant Salig Ram

"'.' •.

Musamrnat Maya

Devi -.· Das J.

ig55

Mdiiant Salig' Ra'Ji

v,' '' MuSam1nat Maya

DeVi1

iJ/u J.'

antestral and (ii) the niovable or sdf acquired property of' their' respective fathers.. It is claimed that these answers _quite ': aequatdy displace the general custom and' shif\ the onus to the . respondent to disprove the ptesrtmption arising on these Riwaj-i-ams by citing instan:2es of successioncontrary to these answers.

In stlj'lpOrt' °c:if this contention" reference is made to the observations . of the Privy Conncil in Beg v. Allah Di'tta(1 ) 'that ·the statements contained in a Riwaj-iani. <£oi-ih a sttbng piece of evidence iff support of the c'uston\. "therein: entered subject to rebuttal.

Reliance is also .-placed on the observations of the Privy Council'in Mt. VaishnlY Ditti y. Mt. Rameshri(2 ) "to the effect that 'the statements in the Riwaj-i-am might be accepted' even if unsupported by instances.

The conterttioii is that on production by the appellant of the Riwaj-icain of the Gurdaspur district the onus shifted to the respondent 'to prove instances rebutting the statements contained therein. This, it is urged, the respohdent has failed to do. ·

:.There is n'o doubt or dispte :is to the value of the. entries . in the . Riwaj-i-am.

It is well-settled that tl}ough' they are entitled to an initial presumption . in favour "of their correctness irrespective of the question whether or not the ' custom, as recorded, is in accord with the general custom, .the' quantum of evidence necessary to rebut that presumption will, however; vary ith_ the facts and . circumstances of each case.

Where, for instance, the Riwaj-i-am lavs down a ustni in . consonance with the general agricultural cust9m of the province, very strong proof would be required to displace that presumption; but where, on the oiher hand, the custom" as recorded in the Riwaji-a'.~ , {s'. oppo; ed to the custom g'eneraliy prevalnt,. the'.presumption will be , considerably weal<ened.

Likewise .where the Riwajci-am . affects adversely the rights of . the femals who had no opportunity whatever of ppearing before the Revenue authodties, _te presufI1ptio11 will be weaker still and only a fe.w mstances would be .sufficient to rebut it. [See Khan Beg v.' Mt.

(i) (1916].i...R. 44.i. A. 89.

(2) [tg~S] i.L.R. to Lah. 186; L.R. 55 I.A. 407.

y ......

Fateh Khatun(1 ), Jagat Singh v. Mst. Jiwan( 2 ) ]. The principles laid down in these cases were approved of by the Judicial Committee in Mst.

Subhani's case supra.

Learned counsel appearing for the appellant contends that even if the presumption as to the correctness of the Riwaj-i-am be weak, the respondent has not cited a single instance of a daughter having excluded the collaterals from succession to the selfacquired property of her father and has, therefore, failed to discharge the onus that was thrown on her as a result of the production-by the appellant of the Riwaji-am of 1913 and, consequently, the appellant must succeed.

This argument overlooks the fact that m order to enable the appellant to displace the general custom recorded in Rattigan's work and to shift the onus to the respondent the appellant must produce a Riwaj-i-am which is a reliable and trustworthy document. It has been held in Qamar-ud-Din v. Mt.

Fateh Bano( 3 ) that if the Riwaj-i-am produced is a reliable and a trustworthy document, has been carefully prepared and does not contain within its four corners contradictory statements of custom and m the opinion of the Settlement Officer is not a record of the wishes of the presons appearing before him as to what the custom should be, it would be a presumptive piece of evidence in proof of the special custom set up, which if left unrebutted by the daughters would lead to a result favourable to the collaterals.

If, on the other hand, it is not a document of the kind indicated above then such a Riwaj-i-am will have no value at all as a presumptive piece of evidence.

This principle has been followed by the East Punjab High Court in the later case of Mohammad Khalil v. Mohammad Bakhsh( 4 ), This being the position in law, we have to scrutinise and ascertain whether the Riwaji-ams of the Gurdaspur district in so far as they purport to record the local custom as to the right of succession of daughters to the self acquired properties of their respective father are reliable and trustworthy documents.

(1) [1931] l.L.R. 13 Lah. 276, 296, 297.

(2) A.LR. t935 Lah. 617.

(3) [1943] l.L.R. 26 Lah. 110.

(4) A.LR. '949 E.P. 252.

Mahant Salig Ram v.

Musammat Maya

Deui

Das].

Mahant Salig Ram v.

Musammat Maya Devi

Da> ],

Twenty-two tribes including Brahmins were consulted by Mr. Kennaway who prepared ' the Riwaj-i-am of 1913.

In paragraph 4 of the Preface Mr.

Kennaway himself states that many of the questions related to matters on which there really existed no custom and the people had merely stated what the custom should be and not what it actually was.

In Appendix 'C' are collected 56 instances of mutuations rn which the daughter inherited.

In these there are four instances relating to Brahmins.

Answer to question 16, as recorded in this Riwaj-i-am, has been discredited and shown to be incorrect in at least three cases, namely, Gurdit Singh v. Mt. Malan('), Kesar Singh v. Achhar Singh(') and Buta Singh v. Mt. Harnamon ( 3 ) • The answer to question 16 as recorded in the 1913 Riwaj-i-am, it was pointed ont, went much beyond the answer given to the same question in the Riwaj-i-ams of 1865 and 1893.

The answer to question 17 of the 1913 Riwaj-i-am that no distinction is to be made between ancestral and self-acquired property has not been accepted as correct in not less than six cases, namely, Bawa Singh

v. Mt. Partap( 4 ), fagat Singh v. Mt. fiwan( '), Kesar Singh v. Gurnam Singh( 0 ), Najju v. Mt. Aimma Bibi('), Gurdit Singh v. Mt. Man Kaur('), and Labh v. Mt.

Fateh Bibi('). The statements in a Riwaj-i-am the truth of which is doubted by the compiler himself in the preface and which stand contradicted by the instances collected and set out in Appendix 'C' of the same Riwaj-i-am and which have been discredited in judicial proceedings and held to be incorrect cannot, in our opinion, be regarded as a reliable or trustworthy document and cannot displace the initial presumption of the general custom recorded in Rattigan' s book so as to shift the onus to the daughter who is the respondent.

The appellant relies on the cases of Ramzan Shah

v. Sohna Shah( 10 ), Nanak Chand v. Basheshar Nath(11 ), Mt. Massan v. Sawan Mal (,.) and Kesar Singh v. (I) [r924] LL.R. 5 Lah. 364.

(3) A.LR. 1946. Lah. 306.

(5) Ibid. 617.

(7) A.LR. r936 Lah. 493

(9) A.LR. 1940 Lah. 436.

(n) 1908] 43 P.R. I5.

(2) A.LR. 1936 Lah. 68.

(4) A.LR. 1935 Lah. 288. r6) Ibid. 696.

(8) A.LR. 1937 Lah. 90.

(IO) [I889] 24 P.R. '9'

(r2) A.LR. '935 Lah. 453

~ I

Achhar Singh(1), The first three cases are of no assistance to him although the second and third relate to Brahmins of Gurdaspur, for the properties in dispute in those cases were ancestral and the respondent does not now dispute the appellant's right to succeed to her father's ancestral properties.

These cases, therefore, do not throw any light on the present case which is concerned with the question of succession to selfacquired property.

Further, in the last case, the collaterals were beyond the fourth degree and it was enough for the Court to say that irrespective of whether the properties in dispute were ancestral or selfacquired the collaterals in that case could not succeed.

It is also to be noted that the earlier decisions were not cited or considered in that case.

In our opinion the appellant has failed to discharge the onus that was initially on him and that being the position no burden was cast on the respondent which she need have discharged by adducing evidence of particular instances.

In these circumstances, the general custom recorded in Rattigan's book must prevail and the decision of the High Court must be upheld. We accordingly dismiss this appeal with costs.

Appeal dismissed.

NANAK CHAND

fl.

THE STATE OF PUNJAB.

[S. R. DAs, BHAGWATI and

SYED JAFER IMAM JJ.]

Indian Penal Code (Act XLV of 1860), s. 34---Merely explanatory-No offence created thereby-Ss. 34 and 149 of the Indian Penal Code-Distinction between the two-Code of Criminal Procedure (Act V of 1898), s. 233-Charge under s. 302 1ead with s. 149, Indian

Penal Code-No speci'fic charge under s. 302, Indian Penal Code as required by s. 233 of the Code of Criminal Procedure-Conviction

under s. 302-Legality thereof.

Section 34 of the Indian Penal Code is merely explanatory.

It does not create any specific offence.

Under this section several persons must be actuated by a common intention and when in further-

(1) A.LR. 1936 Lah. 68.

Mahant Salig Ram

Musammal Ml!)'a

Devi

Das].

January 25

Prevention of Corruption Act

MAHANT SALIG RAM

MUSAMMAT MAYA DEVI

Maharit 'Sillig Ram

v

Kennaway

Pathankot

Gurdaspur

[1955] 1 S.C.R. 86

L.R. 44 I.A. 89

Kesar Singh

Raji11der Narain

K. L. Gosain

Naunit Lal

Bhadroya

Musammat Melo

Musammat Maya Devi

28th September 1944

Gurdial

Indian Succession Act

Lahore High Court

Kingarian

High ' , Court of East Punjab

Mahant Sa

Mahant Sa/ig /Wm

Musammat Maya

Devi ·

Das Ji

Mahant Salig Ram v.

Musammat Mqya

:..,, Devi

Das J.

The main fight before us has been on the question as' to 'whether there is a custom in the Gurdaspur district governing' the parties under which a collateral within the fourth degree excludes the daughter of' the hist, male holder from succession to the -elf-acquired p'roperty  of her father.

Musammat Maya

Devi

Das

Rattigan

Punjab

accepted by the Privy Council as "a book  of _ U!).- questioned authority in the Punjab".

Gurdaspur district

Kennaway

Harnam _ Singh

Harnam Singh

as well as the High Court took the view that the evi~ dence as to the succession to the propertyof Harnam Singh was of no assistance to the appellant for the reason that the evidence was extremely sketchy; that it did not appear whether the properties left by Harnam Singh were ancestral or selfacquired or whether " the .. properties left by him were of any substantial , ...._,, value at all as would have made it worth while for the daughter to claim the same in addition to the properties gifted to her by her father during his lifetime: Further, the.

fiqfllaIU Singh

L.R. 55 I.A. 407

Fateh Khatun(1

Subhani

East Punjab High Court

Mahant Salig Ram

Achhar Singh(1

NANAK CHAND

STATE OF PUNJAB

S. R. DAs

BHAGWATI

SYED JAFER IMAM

Indian Penal Code

s. 34

Ss. 34 and 149

Indian Penal Code

Code of Criminal Procedure

s. 233

s. 302

s. 149

Penal Code

s. 302

Indian Penal Code

s. 233

Code of Criminal Procedure

s. 302

Section 34

Indian Penal Code

Mahant Salig Ram


~ I

S.C.R.

SUPREME COURT REPORTS 1201

Achhar Singh(1), The first three cases are of no assistance to him although the second and third relate to Brahmins of Gurdaspur, for the properties in dispute in those cases were ancestral and the respondent does not now dispute the appellant's right to succeed to her father's ancestral properties.

These cases, therefore, do not throw any light on the present case which is concerned with the question of succession to selfacquired property.

Further, in the last case, the collaterals were beyond the fourth degree and it was enough for the Court to say that irrespective of whether the properties in dispute were ancestral or selfacquired the collaterals in that case could not succeed.

It is also to be noted that the earlier decisions were not cited or considered in that case.

In our opinion the appellant has failed to discharge the onus that was initially on him and that being the position no burden was cast on the respondent which she need have discharged by adducing evidence of particular instances.

In these circumstances, the general custom recorded in Rattigan's book must prevail and the decision of the High Court must be upheld. We accordingly dismiss this appeal with costs.

Appeal dismissed.

NANAK CHAND

fl.

THE STATE OF PUNJAB.

[S. R. DAs, BHAGWATI and

SYED JAFER IMAM JJ.]

Indian Penal Code (Act XLV of 1860), s. 34---Merely explanatory-No offence created thereby-Ss. 34 and 149 of the Indian Penal Code-Distinction between the two-Code of Criminal Procedure (Act V of 1898), s. 233-Charge under s. 302 1ead with s. 149, Indian

Penal Code-No speci'fic charge under s. 302, Indian Penal Code as required by s. 233 of the Code of Criminal Procedure-Conviction

under s. 302-Legality thereof.

Section 34 of the Indian Penal Code is merely explanatory.

It does not create any specific offence.

Under this section several persons must be actuated by a common intention and when in further-

(1) A.LR. 1936 Lah. 68.

Mahant Salig Ram

Musammal Ml!)'a

Devi

Das].

January 25

•955

Nanak Chand

Tht State of Punjab

f y~ ance o that common intention a criminal act is done by them, -each of them is liable for that act as if the act had been done by him alone.

There is a clear distinction between the provisions of s. '14 and s. 149 of the Indian Penal Code and the two sections are not to be confused. The principal element in s. 34 of the Indian Penal Code is the common intention to con1mit a crime.

In furtherance of the common intention several acts may be done by several persons resulting n the commission of that crime.

I~ such a situaton ~· 34 !"'y~ provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that cri1ne had been done ::; by him alone. There is no question of con1mon intention in s. 149 of the Indian Penal Code.

An offence 1nay be committed by a member -of an unlawful assembly and the other members will be liable for that offence although there was no common intention betveen that person and the other members of the unlawful assembly to con1mit that offence provided the conditions laid down in the section are fulfilled. Thus if the offence committed by that person is in prosecution of the co1nmon object of the unlawful assembly or such as the members of that asse1nbly knew to be likely to be committed in prosecution of the common object, .every member of the unlawful assen1bly \Vould be guilty of that offence, although. there may have been no comman intention and no participation by the other members in the actual con1mission of that offence.

There is a difference between object and intention, for although the object may be common, the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in one respect namely that they are all unlawful, while the element of ,_, y. participation in action, which is the leading feature of s. 34, is replaced in s. 149 by membership of the assembly at the time of the co1n1nitting of the offence.

A charge for a substantive offence under section 302, or section

325 cf the Indian Penal Code, etc. is for a distinct and separate ,.. offence from that under section 302, read with section 149 or section 325, read with section 149, etc.

A person charged with an offence read with s. 149 cannot be convicted of the substantive offence without a specific charge being f. framed as required by s. 233 of the Code of Criminal Procedure. \..

There was uo roon1 for the application of s. 236 of the Code of Criminal Procedure to the facts of the present case.

The provisions of s. 236 of the Code of Criminal Procedure can ) apply -only in cases where there is no doubt about the facts which can be proved but a doubt .arises as to which of several offences have been committed on the proved facts in which case any number of charges can be framed and tried or alternative charges can be framed.

In the present case there was no doubt about the facts and if the allegation against: the appellant that he had caused the injuries to the \.1.- deceased with, taktva was established by evidence, then there could be no doubt that the offence of murder had been committed.

In the present case there was no question of any error, omission or irregularity, in the charge within the meaning of s. 537 of the Code of Criminal Procedure because no charge under s. 302 of the Indian Penal Code was in fact framed.

There was an illegality in the present case and not an irregula, rity which was curable by the provisions of ss. 535 and 537 ·of the Code of Criminal Procedure.

Assuming however that there : " was merely an irregularity which was curable, the irregularity in the circumstances of the case was not curable because the appellant 't was misled in his defence by the absence of a charge under s. 302 of the Indian Penal Code.

By framing a charge under s. 302, read with s. 149, Indian Penal Code against the appellant, the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under s. 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged.

In defending himself the appellant was not called upon to meet such a charge and in his defence he may be well have considered it unnecessary to concentrate on that part of the prosecution case.

Barendra Kumar Ghosh v. Emperor

( [19251 I.L.R. 52 Cal. 197), Queen v. Sabid Ali and others ([1873] 20 W.R. (Cr.) 5) Panchu Das. v. Emperor ( [1907] I.L.R. 34 Cal. 698), Reazuaddi and Others

v. King-Emperor ([1901] 6 C.W.N. 98), Emperor v. Madan Manda! and Others ([1914] I.L.R. 41 Cal. 662), Theethumalai Gounder and Others v. King-Emperor ( [1924"] I.L.R. 47 Mad. 746), Queen-Emprm

v. Bisheshar and Others ( [ 1887] I.L.R. 9 All. 645), Taikkottathil Kunheen ([1923] 18 L.W. 946), Ramasray Ahir v. King-Emperor ( [ 1926] I.L.R. 7 Patna 484 ), Sheo Ram and Others v.

Emperor (A.LR. 1948 All. 162), and Karnail Singh and another v. State of Punjab ( (1954] S.C.R. 904 ), referred to.

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 132 of 1954.

Appeal by Special Leave granted by the Supreme Court by its Order dated the 3rd September, 1954 from the Judgment and Order dated the 15th June 1954 of the High Court of Judicature for the State of Punjab at Simla in Criminal in Appeal No. 287 of 1954 arising out of the Judgment and Order dated the 14th April 1954 of the Court of Additional Sessions Judge in Session Case No. 4 of 1954.

/. G. Sethi, (Naunit Lal, with him), for the appellant.

r955

Nanak Chand

The State of Punjab

Nanak Chand v.

The StaU of

JJ_ury'ab

Gopal Singh and P. G. Gokhale, for the respondent. 1955.

January 25.

The Judgment of the Court was delivered by IMAM J.-This appeal by Nanak Chand comes by special leave against the judgment of the Punjab (I) _, High Court.

The appellant was convicted by the High Court under section 302 of the Indian Penal Code and the sentence of death passed on him by the Additional Sessions Judge of Jullundur was confirmed.

On the facts alleged by the .Prosecution there can be no doubt that Sadhu Ram was killed on the 5th of November, 1953, at about 6-45 P.M. at the shop of Vas Dev P. W. 2.

It is alleged that the appellant along with others assaulted Sadhu Ram.

The appellant was armed with a takwa.

Numerous injuries were found on the person of Sadhu Ram.

According to the doctor, who held the post-mortem examination, injuries 1, 3 and 4 were due to a heavy sharp edged weapon and could be caused by a takwa.

It was denied by the prosecution that the deceased was assaulted bv any other person with a takwa.

According to the Medicai evidence, injuries 1, 3 and 4 individually,· as well as collectively, were enough to cause death in the ordinary course of nature.

In the Court of Sessions the appellant along with others was charged under section 148 and section 302, read with section 149 of the Indian Penal Code.

The Additional Sessions Judge, however, held that the charge of rioting was not proved.

He accordingly found the appellant and three others guilty under section 302, read with section 34 of the Indian Penal Code.

He acquitted the other three accused.

There was an appeal by three convicted persons to the High Court and the High Court convicted the appellant alone under section 302 of the Indian Penal Code, confirming the sentence of death but altered the conviction of the other accused from section 302/34 to section 323, Indian Penal Code.

It held that the provisions of section 34 of the Indian Penal Code did not apply.

v ' 1

....

... l

On behalf of the appellant questions of law and questions of fact were urged.

It will be unnecessary to deal with the questions of fact if the argument on points of law is accepted.

The principal question of law to be considered is as to whether the appellant could legally be convicted for merder and sentenced under section 302, Indian Penal Code when he was not charged with that offence.

It was urged that as the appellant had been acquitted of the charge of rioting and the offence under section 302/149 of the Indian Penal Code, he could not be convicted for the substantive offence of murder under section 302, Indian Penal Code, without a charge having been framed against him under that section.

Reliance has been placed on the provisions of the Code of Criminal Procedure relating to the framing of charges, the observations of the Privy Council in Barendra Kumar Ghosh

v. Emperor( 1 ) and certain decisions of the Calcutta High Court to which reference will be made later on.

It was urged that for every distinct offence of which a person is accused, there shall be a separate charge and every such charge shall be tried separately except in cases mentioned under sections 234, 235, 236, 237 and 239 of the Code of Criminal Procedure.

Section 149 of the Indian Penal Code creates a specific offence and it is a separate offence from the offence of murder punishable under section 302 of the Indian Penal Code.

The provisions of sections 236, 237 and 238 of the Code of Criminal Procedure did not apply to the facts and cJrcumstances of the present case.

On behalf of the Prosecution, however, it was urged that section 149 did not create any offence at all and therefore no separate charge was obligatory under section 233 of the Code of Criminal Procedure and that in any event the provisions of sections 236 and 237 of the Code of Criminal Procedure did apply and the appellant could have been convicted and sentenced under section 302 of the Indian Penal Code, although no charge for the substantive offence of murder had been framed against him.

(1) [1925] I.L.R. 52 Cal. 197.

. 1955

Nanak Chand v.

The State of

Purifah

Imam ].

.Nanak C.arui

The State of Punjab

Imam J.

It is necessary, therefore, to exammc the prov1s10ns of section 149 of the Indian Penal Code and consider as to whether tills section creates a specific offence.

Section 149 of the Indian Penal Code 1s to be found in Chapter VIII of that Code which deals with offences against the public tranquillity.

Section 149 of the Indian Penal Code reads :-

'If an offence is committed by any member of an unlawful assembly m prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed m prosecution of that object, every person who, at the time of the committing of that offence, 1s a member of the same assembly, 1s guilty of that offence".

This section postulates that an offence 1s committed by a member of an unlawful assembly m prosecution of the common object of that assembly or such as a member of the assembly knew to be likely to be committed m prosecution of that object and declares that in such circumstances every person, who was a member of the same assembly at the time of the comm1ss10n of the offence, was guilty of that offence.

Under this section a person, who 1s a member of an unlawful assembly 1s made guilty of the offence committed by another member of the same assembly, m the circumstances mentioned m the section, although he had no intention to commit that offence and had done no overt act except his presence m the assembly and sharing the common object of that assembly.

Without the prov1S1ons of this section a member of an unlawful assembly could not have been made liable for the offence committed not by him but by another member of that assembly.

Therefore when the ac- -cused are acquitted of riot and the charge for being members of an unlawful assemblv fails. there can be no conviction of any one of the~ for n offence which he had not himself committed.

Similarly under section 150 of the Indian Penal Code, a specific offence is created.

Under this section a person need n1)( be a member of an unlawful assembly and yet he would be guilty of being a member of an unlawful assembly and guilty of an offence which may be committed by

' ..

v •

' .-~

.-a member of the unlawful assembly in the c1rcum- -stances mentioned in the section.

Sections 149 and 150 of the Indian Penal Code are not the only sections in that Code which create a specific offence.

Section -471 of the Indian Penal Code makes it an offence to , _fraudulently or dishonestly use as genuine any docu- ~ ment which a person knows or has reason to believe to be a forged document and it provides that such a person shall be punished in the same manner as if he had forged such document.

Abetment is an offence under the Indian Penal Code and is a separate crime to the principal offence.

The sentence to be inflicted may be the same as for the principal offence.

In Chapter XI of the Indian Penal Code offences of false evidence and against public justice are mentioned.

Section 193 prescribes the punishment for giving false evidence in any stage of a judicial proceeding or fabri- cating false evidence for the purpose of being used in .any stage of a judicial proceeding.

Section 195 creates .an offence and the person convicted of this offence is liable in certain circumstances to be punished in the same manner as a person convicted of the principal ... __,. offence.

Sections 196 and 197 to 200 of the Indian Penal Code also create offences and a person convicted under any one of them would be liable to be punished in the same manner as if he had given false evidence.

It was, however, urged on behalf of the Prosecution that _section 149 merely provides for constructive guilt similar to section 34 of the Indian Penal Code.

Section 34 reads:

"When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone". ( 'This section is merely explanatory.

Several persons must be actuated by a common intention and when in furtherance of that common intention a criminal .act is done by them, each of them is liable for that .act as if tlie act had been, done by him alone.

This section does not create any specific offence. As was pointed out by Lord Sumner in Barendra Kumar ; Ghosh v. Emperor(1) "'a criminal act' means that

{1) [1925] I.L.R. 52 Cal. 197.

1955 .

Nanak Chand v.

The State of

Puiifah

Imam J•

Nanak Chand

The State of Punjab

Imam j.

unity of criminal behaviour which results m something, for which an individual would be punishable, if it were all done by himself alone, that is, in a criminal offence".

There is a clear distinction between the provisions of sections 34 and 149 of the Indian Penal Code and the two sections are not to be confused~ The principal element m section 34 of the Indian Penal Code is the common intention to commit a: cnme.

In furtherance of the common intention several acts may be done by several persons resulting m the comm1ss10n of that cnme.

In sucb a situation section 34 provides that each one of them would be liable for that crnne 111 the same manner as if all the acts resulting m that cnme had been done by him alone.

There is no question of common intention m section 149 of the Indian Penal Code.

An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled.

Thusc if the offence committed by that person 1s m prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object, every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual comm1ss10n of that offence.

In Barendra Kumar Ghosh v. Emperor(') Lord Sumner dealt with the argument that if section 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court, then sections 114 and 149 of that Code would be otiose.

In the opm10n of Lord Sumner, however, section 149 is certainly not otiose, for 111 any case it created a specific offence.

It postulated an assembly of five or more persons, having a common object, as 'named m section 141 of the Indian Penal Code and then the comm1ss10n of an offence by one member of it in prosecution of that object and he referred to Queen v. Sabid Ali and

(1) [1925) LL, R. 52 Cal. 197,

r-- , OthersC ). He pointed out that there was a difference between object and intention, for although the object may be common, the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action,

~ ~- ·which is the leading feature of section 34, was replaced in section 149 by membership of the assembly

--<; at the time of the committing of the offence. It was argued, however, that these observations of Lord Sumner were obiter dicta.

Assuming though not conceding that that may be so, the observations of a Judge of such eminence must carry weight particularly if the observations are in keeping with the ) provisions of the Indian Penal Code.

It is, however, to be remembered that the observations of Lord Sumner did directly arise on the argument made before the Privy Council, the Privy Council reviewing as a whole the provisions of sections 34, 114 and 149 of the Indian Penal Code.

On behalf of the appellant certain decisions of the Calcutta High Court were relied upon in support of the submission made, viz. Panchu Das v. Emperor(2), Reazuddi and Others v. King-Emperor( 3 ) and Emperor v. Madan Manda! and Others(4). These decisions support the contention that it will be illegal to convict an accused of the substantive offence under a section without a charge being framed if he was acquitted of the offence under that section read with section 149 of the Indian Penal Code. On the other hand, the

.\ I

prosecution relied upon a decision of the Full Bench of the Madras High Court in T heethumalai Gounder and Others v. King-Emperor(s ) and the case Queen- Empress v. Bisheshar and Others( 6 ). The decision of the Madras High Court was given in April, 1924, and ( reliance was placed upon the decision of the Allahabad High Court.

The decision of the Privy Council in Barendra Kumar Ghosh's case was in October, 1924.

The Madras High Court, therefore, did not have before it the decision of the Privy Council.

It is im-

., LJ possible to say what view might have been expressed

(1 J f1873] 20 vV. R. (Cr.) 5.

(2) [1907] I.L.R. 34 Cal. 698.

(3) [1901] 6 C.W.N. 98.

(4) [1914] I.L.R. 41 Cal. 662.

(5) (1924] LL.R. 47 Mad. 746.

(6) [1887] LL.R. 9 All. 645.

Nanak Chand: v.

The State of

Punjab

Imam ].

JV'anak Chand

The State of

Punjab

.fmam J.

by that court if the Privy Council's judgment m the aforesaid case had been available to the court.

The view of the Calcutta High Court had been noticed and it appears that a decision of the Madras High Court in Taikkottathil Kunheen(') was to the effect that section 149 of the Indian Penal Code is a distinct offence from section 325 of the Indian Penal Code.

Because of this it was thought advisable to refer the matter to a Full Bench.

Two questions were referred to the Full Bench: (1) When a charge omits section 149, Indian Penal Code, and the conviction is based on the provisions of that section, is that conviction necessarily bad, or does it depend on whether the accused has or has not been materially prejudiced by the omission ? (2) When a charge has been framed under sections 326 and 149, Indian Penal Code, is a conviction under section 326, Indian Penal Code, necessarily bad, or does this also depend on whether the accused has or has not been materially prejudiced by the form of the charge ? The Full Bench agreed with the view expressed by Sir John Edge m the Allahabad case that section 149 created no offence, but was, like section 34, merely declaratory of a principle of the common law, and its object was to make it clear that an accused who comes within that section cannot put forward as a defence that it was not his hand which inflicted the grievous hurt. It was -observed by Spencer, J. that a person could not be tried and sentenced under section 149 alone, as no punishment IS provided by the section.

Therefore the omiss10n of section 149 from a charge does not create an illegality by reason of section 233 of the Code of Criminal Procedure which provides that for -every distinct offence of which any person 1s accused there shall be a separate charge.

They did not agree with the general statement m Reazuddi' s case(') that it IS settled law that when a person 1s charged by implication under section 149, he cannot be convicted of the substantive offence.

A charge for a substantive offence under section 302, or section 325 of the Indian Penal_ Code, etc. is for a distinct and separate offence from that under section

(r) [1923] 18 L.W. 946.

(2) [1901J 6 C.W.N. 98.

• ..

302, read with section 149 or section 325, read with section 149, etc. and to that extent the Madras view is incorrect. It was urged by reference to section 40 of the Indian Penal Code that section 149 cannot be regarded as creating an 'offence' because it does not itself provide for a punishment.

Section 149 creates an offence . but the punishment must depend on the offence of which the offender is by that section made guilty.

Therefore the appropriate punishment section must be read with it.

It was neither desirable nor possible to prescribe one uniform punishment for all cases which may fall within it.

The finding that all the members of an unlawful assembly are guilty of the offence committed by one of them in the prosecution of the common object at once subjects all the members to the punishment prescribed for that offence and the relative sentence.

Reliance was also placed upon the decision of the Patna High Court in Ram; asray Ahir v. King-Emperor(') as well as the decision of the Allahabad High Court in Sheo Ram and Others v.

Emperor(2). In the former case the decision of the Privy Council in Barendra Kumar Ghosh's case was not considered and the decision followed the Full Bench of the Madras High Court and the opinion of Sir John Edge.

In the latter case the Allahabad High Court definitely declined to answer the question as to whether the accused charged with an offence read with section 149, Indian Penal Code, or with an offence read with section 34, Indian Penal Code, could be convicted of the substantive offence only.

After an examination of the case referred to on oehaii of the appellant and the prosecution we are of the opinion that the view taken by the Calcutta High Court is the correct view namely, that a person charged with an offence read with section 149 cannot be convicted of the substantive offence without a specific charge being framed as required by section 233 of the Code of Criminal Procedure.

It was urged that in view of the decision of this Court in Karnail Singh and another v. State of Punjab( 3 ) a conviction under section 302, read with sec-

(1) [1928] I.L.R. 7 Patna 484.

(2) A.LR. 1948 All. 162.

(3) 1954 s.c.R. 901J,·

Nanak Chano.

The State ef

Punjab

Imam J,

'955

.N_anak Chand

Th•Stal<of

Punjab

Imam ].

tion 149, could be converted into a conviction under section 302/34 which the trial Court did.

There could be no valid objection, therefore, to converting a con. viction under section 302/34 into one under section 302 which the High Court did. This argument is unacceptable. The High Court clearly found that section 34 was not applicable to the facts of the case and • acquitted the other accused under section 302/34, that is to say the other accused were wrongly convicted by the trial court in that way but the appellant should have been convicted under section 302.

The High Court could not do what the trial court itself could not do, namely, convict under section 302, as no separate charge had been framed under that section.

It was urged by the Prosecution that under the provisions of section 236 and section 237 of the Code of Criminal Procedure a person could be convicted of an offence which he is shown to have committed although he was not charged with it.

Section 237 of the Code of Criminal Procedure is entirely dependent on the provisions of section 236 of that Code.

The prov1S1ons of section 236 can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can be framed and tried or alternative charges can be framed.

In these circumstances if there had been an omission to frame a charge, then under section 237, a conviction could be arrived at on the evidence although no charge had been framed.

In the present case there is no doubt about the facts and if the allegations against the appellant that he had caused the injuries to the deceased with takwa was established by evidence, then there could be no doubt that the offence of murder had been committed.

There was no room for the application of section 236 of the Code of Criminal Procedure.

It had been argued on behalf of the prosecution that no finding or sentence pronounced shall be deemed invalid merely on the ground that no charge was framed.

Reliance was placed on the provisions of section 535 of the Code of Criminal Procedure.

...

~... .... Reference was also made to the provisions of section 537 of that Code.

Section 535 does permit a court of appeal or revision to set aside the finding or sentence if in its opinion the noncframing of a charge has resulted in a failure of justice.

Section 537 also permits a court of appeal or revision to set aside a finding or

, . §entence if any error, omission or irregularity in the

\ y . charge has, in fact, occasioned a failure of justice . . "-' The explanation to the section no doubt directs that the court shall have regard to the fact that the objection could and should have been raised at an earlier stage in the proceedings.

In the present case, however, there is no question of any error, omission or irregularity in the charge because no charge under section 302 of the Indian Penal Code was in fact +. framed.

Section 232 of the Code of Criminal Procedure permits an appellate court or a court of revision, if satisfied that any person convicted of an offence was misled in his defence in the absence of a charge or by an error in the charge, to direct a new trial to be had upon a charge framed in whatever manner it thinks fit.

In the present case we are of the opinion that there was an illegality and not an irregularity ... V" curable by the provisions of sections 535 and 537 of the Code of Criminal Procedure. Assuming, however, for a moment that there was merely an irregularity which was curable, we are satisfied that, in the circumstances of the present case, the irregularity is not curable because the appellant was misled in his defence by the absence of a charge under section 302 of the Indian Penal Code. By framing a charge under section 302, read with i section 149 of the Indian Penal Code against the appellant, the Court indicated that it was not charging the appellant with the offen.ce of murder and to con- ( vict him for murder and sentence him under section 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged.

In defending himself the appellant was not called upon to meet such a charge and in his defence he may well , Lj have considered it unnecessary to concentrate on that part of the prosecution case.

Attention has been

Nanak Chand

The State of Punjab

Imam

Nanl'k Chand v.

The State of

Pu'f!; ab

Imam J.

drawn to the Medical evidence.

With reference to injury No. 1 the doctor stated that the wounds were not very clean-cut.

It is further pointed out that the other incised injuries on the head were bone deep.

The bone, however, had not been cut. Injuries on the

\ ~(

head although inflicted by a blunt weapon may some-. times assume the characteristics of an incised wound.

Reference was made to Glaister on Medical Jurispru-~ ·, .. , dence, 9th Ed., at page 241, where it is stated that under certain circumstances, and in certain situations 7 on the body, wounds produced by a blunt instrument may stimulate the appearance of an incised wound.

These wounds are usually found over the bone which is thinly covered with tissue, in the regions of the head, forehead, eyebrow, cheek, and lower jaw, among others.

It is also pointed that Vas Dev P.W. 2 had admitted that Mitu took away the takwa from the appellant after Sadhu Ram had been dragged out of the shop but no takwa blow was given outside the shop.

Prakash Chand P.W. 4, another eye-witness,. also admitted that Mitu had taken the takwa from the appellant when they had come out of the shop.

It was urged that if a specific charge for murder had been framed against the appellant, he would have questioned the doctor more closely about the incised injuries on the head of the deceased, as well as the prosecution witnesses.

It is difficult to hold in the circumstances of the present case that the appellant was not prejudiced by the non-framing of a charge under section 302, Indian Penal Code.

Having regard to the view expressed on the question of law, it is unnecessary to refer to the arguments on the facts.

The appeal is accordingly allowed and the conviction and the sentence of the appellant is set aside and the case of the appellant is remanded to the court of Sessions at Jullundur for retrial after framing a charge under section 302 of the Indian Penal Code and in accordance with law.

Appeal allowed.

1 '\

I '

Achhar Singh(1

~ I

Achhar Singh(1), The first three cases are of no assistance to him although the second and third relate to Brahmins of Gurdaspur, for the properties in dispute in those cases were ancestral and the respondent does not now dispute the appellant's right to succeed to her father's ancestral properties.

Gurdaspur

Rattigan

NANAK CHAND

THE STATE OF PUNJAB

S. R. DAs

BHAGWATI

SYED JAFER IMAM JJ.

Indian Penal Code

s. 34

Ss. 34 and 149

Indian Penal Code

Code of Criminal Procedure

s. 233

s. 302

s. 149

Penal Code

s. 302

Indian Penal Code

s. 233

Code of Criminal Procedure

s. 302

Section 34

Indian Penal Code

Mahant Salig Ram

Nanak Chand

State of Punjab

s. 149

Indian Penal Code

s. 34

Indian Penal Code

s. 149

Indian Penal Code

s. 34

s. 149

section 302

section

325

Indian Penal Code

section 302

section 149

section 325

section 149

s. 149

s. 233

Code of Criminal Procedure

s. 236

Code of Criminal Procedure

s. 236

Code of Criminal Procedure

s. 537

Code of Criminal Procedure

s. 302

Indian Penal Code

ss. 535 and 537

Code of Criminal Procedure

s. 302

Indian Penal Code

s. 302

s. 149

Indian Penal Code

s. 302

Indian Penal Code

G. Sethi

Naunit Lal

Nanak Chand

State of Punjab

StaU of

JJ_ury'ab

Gopal Singh

P. G. Gokhale

IMAM

section 302

Indian Penal Code

Additional Sessions Judge of Jullundur

Sadhu Ram

5th of November, 1953

Vas Dev

section 148

section 302

section 149

Indian Penal Code

section 302

section 34

Indian Penal Code

section 302

Indian Penal Code

section 302

section 323

Indian Penal Code

section 34

Indian Penal Code

section 302

Indian Penal Code

section 302

Indian Penal Code

section 302

Indian Penal Code

Code of Criminal Procedure

Calcutta High Court

sections 234, 235, 236, 237 and 239

Code of Criminal Procedure

Section 149

Indian Penal Code

section 302

Indian Penal Code

sections 236, 237 and 238

Code of Criminal Procedure

section 149

section 233

Code of Criminal Procedure

sections 236 and 237

Code of Criminal Procedure

section 302

Indian Penal Code

.Nanak C.arui

Imam

section 149

Indian Penal Code

Section 149

Indian Penal Code

Chapter VIII of that Code

Section 149

Indian Penal Code

section 150

Indian Penal Code

Sections 149 and 150

Indian Penal Code

Indian Penal Code

Indian Penal Code

Section 193

Section 195

Sections 196 and 197 to 200

Indian Penal Code

section 149

section 34

Indian Penal Code

Section 34

Sumner

sections 34 and 149

Indian Penal Code

section 34

Indian Penal Code

section 34

section 149

Indian Penal Code

section 34

Indian Penal Code

sections 114 and 149

section 149

section 141

Indian Penal Code

section 34

section 149

Indian Penal Code

sections 34, 114 and 149

Indian Penal Code

section 149

Indian Penal Code

Madras High Court

Allahabad High Court

Barendra Kumar Ghosh

State of

Punjab

JV'anak Chand

Taikkottathil Kunheen

section 149

Indian Penal Code

section 325

Indian Penal Code

section 149

Indian Penal Code

sections 326 and 149

Indian Penal Code

section 326

Indian Penal Code

Allahabad

section 149

section 34

Spencer

section 149

section 149

section 233

Code of Criminal Procedure

Reazuddi

section 149

section 302

section 325

section 149

section 325

section 149

Madras

section 40

Indian Penal Code

section 149

Section 149

Patna High Court

Ram

Sir John Edge

section 149

Indian Penal Code

section 34

Indian Penal Code

section 149

section 233

Code of Criminal Procedure

section 302

State

section 302

section 302

section 302

section 34

section 302

section 302

section 302

section 236

section 237

Code of Criminal Procedure

Section 237

Code of Criminal Procedure

section 236

section 236

section 237

section 236

Code of Criminal Procedure

section 535

Code of Criminal Procedure

section 537

Section 535

Section 537

section 302

Indian Penal Code

Section 232

Code of Criminal Procedure

sections 535 and 537

Code of Criminal Procedure

section 302

Indian Penal Code

section 302

section 149

Indian Penal Code

section 302

Indian Penal Code

Mitu

Prakash Chand

section 302

Indian Penal Code

court of Sessions at Jullundur

section 302

Indian Penal Code