- Bookmark
- Share
- CaseIQ
Bishuwanath And Others v. Emperor
Factual and Procedural Background
This appeal was brought by four persons — Bishunath Tewari, Brij Bhukan, Lochan and Harakh Narain Tewari — who had been convicted by the learned Second Additional Sessions Judge at Gorakhpur of two offences under the Penal Code: one described in the opinion initially as under "S. 804 read with S. 34" (the text contains this wording) and the other under S. 323. The formal charge as framed by the Committing Magistrate alleged that on or about 14 June 1944 in the afternoon at village Subedar Pur they committed culpable homicide not amounting to murder by causing the death of Balai Ahir deceased by voluntarily causing injuries with lathis on his head, an offence punishable under S. 304, Penal Code.
When the case reached the Court of Session the charge was amended by adding, after the reference to the head injury, the words "which were likely to cause his death and caused simple hurt to Daya Ram and Kalpu." The prosecution's factual case was that the deceased Balai (resident of village Talhi but often living at Subedar Pur) and his companions Daya Ram and Kalpu were erecting thatched huts on the site of earlier huts when the four appellants, armed with lathis, came and assaulted them. The prosecution witnesses whose evidence is recounted include Daya Ram, Kalpu, Sahtu, Ishaq and Tameshar.
At trial the learned Sessions Judge convicted the appellants of the offences charged. On appeal the matter raised issues concerning (a) whether the charge and the evidence supported imputing liability under S. 34 (common intention), (b) the applicability of private defence, and (c) the appropriate offences and sentences. The appellate court considered the evidence, identified discrepancies in the prosecution case about who struck the fatal blows, addressed the absence of a charge under S. 34 in the framed charge, and altered the convictions and sentences as described below.
Legal Issues Presented
- Whether a charge or conviction could properly be sustained under S. 34, Penal Code (common intention), given the framing of the charge and the evidence.
- Whether the appellants were entitled to the defence of private defence (self‑defence) in respect of the assault on the deceased and the other witnesses.
- Whether the appellants were properly convicted of culpable homicide not amounting to murder (S. 304) on the evidence, or whether a conviction for causing grievous hurt (S. 325) was more appropriate.
Arguments of the Parties
Prosecution's Case
- The prosecution alleged that on 14 June 1944 the four appellants came to the site where Balai, Daya Ram and Kalpu were erecting huts and, all being armed with lathis, attacked and beat them.
- Evidence from five prosecution witnesses was produced describing an altercation and a subsequent beating in which Balai sustained injuries on his head and fell unconscious and later died.
Defence's Arguments
- The defence contended that the appellants had a right of private defence because Balai and his companions were committing criminal trespass on land belonging to the appellants (zamindars).
- It was suggested by the defence that Balai himself may have taken up a lathi and attacked one of the appellants (Brij Bhukan), implying reciprocal action rather than an unprovoked assault by the four appellants.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 1945 A.L.J. 344 (’45) 32 A.I.R. 1945 P.C. 118, 72 I.A. 148, 219 I.C. 467 | The principle governing Section 34 (common intention): that S.34 establishes joint liability when a criminal act is done by one of the accused in furtherance of a common intention, which implies a prearranged plan; to invoke S.34 it must be shown the act was done in concert pursuant to such plan. | The court relied on this authority to explain the threshold for applying S.34 and concluded that the facts did not establish a prearranged plan or concerted action in the required sense; therefore S.34 could not be applied to convict the appellants for the culpable homicide charged. |
Court's Reasoning and Analysis
The court's reasoning proceeded in a series of analytical steps, reproducing the key points from the opinion:
- On the pleadings and charge: The court noted a "vital omission" — the charge as framed did not reference S. 34, Penal Code. The appellate judge stated that where the prosecution seeks to rely on S. 34 to hold one person responsible for the result produced by another, it is necessary that a charge under that section be framed; omission is a vital defect that limits responsibility to the act done by each accused individually.
- On the legal standard for S. 34: The court quoted and applied the Privy Council decision (1945 A.L.J. 344 etc.), explaining that S. 34 requires proof of a common intention animating the accused, implying a prearranged plan and that the criminal act was done in furtherance of that plan. Liability under S. 34 attaches if a criminal act was done by one person in furtherance of the common intention of all.
- On the facts as proved: The prosecution evidence showed the four appellants — three zamindars and a sipahi — arrived armed with lathis and assaulted Balai and his companions while they were erecting huts. Witness testimony was unanimous that the deceased was beaten and fell unconscious. However, there were discrepancies as to whether Bishunath alone struck the first/fatal blow or whether all four attacked simultaneously.
- On private defence: The court rejected the defence of private defence. It accepted the Sessions Judge's finding that huts previously belonging to Balai and his companions had existed on the site and that they were attempting to raise new huts on the same site. That undercut the trespass argument. Further, the appellants were four and all armed, whereas Balai (by the defence case) had only a khanti while digging; the suggestion that Balai picked up a lathi and attacked one appellant was found to be manifestly untrue. Given these facts, the right of private defence did not apply.
- On application of S. 34 to the proven circumstances: Applying the Privy Council principle and the factual record, the court found no evidence of a pre-arranged plan or concerted action in the sense required by S. 34. The prosecution evidence did not justify invoking S. 34; the discrepancies as to who inflicted the fatal head injuries meant it could not be proved that any one accused caused the fatal injury in furtherance of a common pre-arranged plan.
- On appropriate conviction: Because S. 34 could not be applied and because it was not possible to attribute the fatal head injury to any one accused beyond reasonable doubt, none of the appellants could properly be convicted of culpable homicide not amounting to murder (S. 304). Notwithstanding that, the court reasoned that when four persons simultaneously attack another with lathis it is fair to presume against each of them that they intended at least to cause grievous hurt. On that basis the court concluded each appellant was guilty of the offence under S. 325, Penal Code (grievous hurt).
- On sentence: The court altered the conviction from S. 304 to S. 325 for each appellant and reduced the sentence on that count from six years' rigorous imprisonment to four years' rigorous imprisonment for each. The convictions and sentences under S. 323 (six months' rigorous imprisonment each) were upheld. Sentences were ordered to run concurrently. The appellants were directed to surrender to undergo the unexpired portions of their sentences if then out on bail.
Holding and Implications
Final Disposition
The appeal was partly allowed. Concretely:
- The appellate court altered each appellant's conviction on the count of culpable homicide not amounting to murder (S. 304 as charged) to a conviction for causing grievous hurt (S. 325, Penal Code).
- The sentence for the S. 325 conviction was reduced from six years to four years' rigorous imprisonment for each appellant.
- The convictions under S. 323, Penal Code, and the associated sentence of six months' rigorous imprisonment for each appellant were upheld.
- All sentences were directed to run concurrently.
- The appellants, if out on bail, were ordered to surrender and undergo the unexpired portions of their sentences.
Implications
The immediate consequence was a reduction in the severity of the substantive conviction (from culpable homicide to grievous hurt) and a lighter term of imprisonment on that count, while the conviction and sentence for the lesser offence (S. 323) remained intact. The court emphasized procedural and substantive prerequisites for invoking S. 34: both the necessity of an appropriately framed charge when relying on S. 34 and the substantive requirement of proof of a prearranged plan or concerted action. The opinion applied an existing Privy Council authority on S. 34 but did not purport to create a new legal principle beyond applying that established test to the facts of this case.
Note: The opinion as provided contains an internal textual inconsistency: the opening paragraph refers to an offence under "S. 804 read with S. 34," while the formal charge and later discussion refer to S. 304, Penal Code. This summary reports both textual references as they appear in the provided opinion.
1. This is an appeal by four persons—Bishunath Tewari, Brij Bhukan, Lochan and Harakh Narain Tewari—who have been convicted by the learned Second Additional Sessions Judge at Gorakhpur of two offences, one under S. 804 read with S. 34 and the other under S. 323, Penal Code. The charge framed against the appellants by the learned Committing Magistrate ran as follows:
“That you on or about the 14th day of June 1944 in the afternoon in village Subedar Pur in Page: 154P.C Maharaj Ganj to the south of the Chhaoni committed culpable homicide not amounting to murder by causing the death of Balai Ahir deceased by voluntarily causing injuries with lathis on his head and thereby committed an offence punishable under S. 304, Penal Code.”
2. When the case came up for trial in the Court of Session, this charge was amended by the addition of the following words at the end, that is, after the word “head,” namely, “which were likely to cause his death and caused simple hurt to Daya Ram and Kalpu.”
3. It will be noticed at once that there is no reference at all in this charge to S. 34, Penal Code. There is no suggestion in the charge, as it is framed, that the offence or offences were committed by the accused persons in furtherance of the common intention of all. The charge relates to the death of one Balai Ahir, who was a resident of village Talhi. It appears, however, that he had a large amount of pahi cultivation in the neighbouring village of Subedar Pur and the prosecution evidence clearly suggests, and I think the point has been proved, that the deceased and his family had their houses in village Subedar Pur and very often lived there. The prosecution case is that the deceased had built a house quite close to his fields some twenty or twenty-two years ago, but that house fell down about eight or ten years ago, whereupon the deceased erected three huts in place of the house. These huts were also burnt down sometime later and on the date on which the alleged offence is said to have been committed, that is, 14th June, 1944, the deceased, his brother Kalpu and his nephew Daya Ram were engaged in putting up thatched huts on the very site on which the old huts existed. Balai deceased was actually digging holes in the ground in order to fix poles therein for supporting the thatched roof, while poles and beams were being brought by Daya Ram and Kalpu. This, according to the prosecution case, was taking place sometime in the afternoon. While the deceased and his two companions were thus engaged the four appellants are said to have come there all armed with lathis. Three of the appellants, namely, Bishunath, Brij Bhukhan and Harakh Narain, are zamindars of village Subedar Pur, while Lochan appellant is said to be their sipahi.
4. What happened then is to be gathered from the evidence of five witnesses examined by the prosecution, namely, Daya Ram, Kalpu, Sahtu, Ishaq and Tameshar. The story which emerges from this evidence is that while Balai deceased and his two companions were engaged in erecting the huts the four appellants came up armed with lathia and an altercation first ensued between the appellant Bishunath Tewari and the deceased Balai. The appellant asked the deceased to stop digging, whereupon the latter said that the land formed part of the site of his house and he was, therefore, entitled to dig the ground for fixing poles in order to erect his huts. There is some discrepancy in the prosecution evidence at this stage. Some witnesses state that the appellant Bishunath Tewari came first of all and the other three appellants followed him sometime later. Other witnesses say that all the appellants came in a body. The story is, however, unanimous that the four appellants came together at the spot and all of them were armed with lathis. When Balai deceased asserted his right to the land which he was digging, the appellant Bishunath Tewari was annoyed and it is said that he asked his companions to give the deceased a hammering. Now, two of the prosecution witnesses clearly state that it was the appellant Bishunath Tewari himself who delivered the first blow which fell upon the deceased's head. Two out of the remaining three witnesses are equally clear that all the four appellants set upon the deceased at once and began beating him. One witness says that he saw the appellant Bishunath Tewari delivering the first blow, but he could not say where that blow took effect upon the deceased's body. All the witnesses are, however, agreed in stating that the deceased fell down and became unconscious. His two companions, Daya Ram and Kalpu, were coming from their field to the spot with beams and other materials for erecting the huts and they saw Balai deceased being beaten by the appellants, whereupon they ran to the spot and remonstrated with the assailants with the result that they were also beaten. (After discussing the evidence his Lordship proceeded.) It was suggested on behalf of the defence that the appellants had a right of private defence, inasmuch as Balai deceased and the prosecution witnesses Daya Ram and Kalpu were committing criminal trespass upon a piece of land belonging to the appellants zamindars. In the first place, it has been found by the learned Second Additional Sessions Judge, and with that finding I agree, that some huts belonging to Balai deceased and the prosecution witnesses Daya Ram and Kalpu existed on the spot previously and it was only on that site that the deceased Page: 155and his two relations were trying to raise new huts. This strikes at the very root of the plea of private defence sought to be raised on behalf of the appellants. In any case, there could be no question of the right of private defence in the circumstances before us, because it is evident that the appellants, four in number, were all armed, while the deceased Balai had according to the defence case itself, nothing but a khanti in his hand with which he was digging a hole in the ground at the time. The defence has no doubt suggested that a lathi was lying conveniently near him and he picked up that lathi and attacked the appellant Brij Bhukan with it. That is in my judgment manifestly untrue. If the four appellants wanted to prevent Balai deceased, they could have done so without resorting to any force. I am, therefore, satisfied upon the evidence that Balai deceased and the prosecution witnesses Daya Ram and Kalpu were attacked and injured by the four appellants in the circumstances alleged by the prosecution.
5. The question, however, remains: What was the offence committed by each one of the appellants in the circumstances of the present case? I have already stated in the opening of my judgment that there was a vital omission to frame a charge under S. 34, Penal Code. Where the prosecution invokes the aid of S. 34, Penal Code, for holding one person responsible for the result produced by the act of another, it is in my judgment necessary to frame a charge under that section. Omission to do so is in my opinion a vital defect and the result is that the man can be held responsible only for the result of an act committed by himself. Besides this technical point, I find that the circumstances of the case as established by the prosecution evidence did not justify the application of S. 34, Penal Code. The application of this section was the subject of consideration by their Lordships of the Privy Council in 1945 A.L.J 344 (’45) 32 A.I.R 1945 P.C 118 , 72 I.A 148 , 219 I.C 467 , 1945 A.L.J 344 (P.C). Their Lordships laid down the principle governing the application of S. 34, in the following terms:
“Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say ‘the common intentions of all’ nor does it say ‘an intention common to all.’ Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of S. 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This Using the principle, it is clear to their Lordships that common intention within the meaning of the section implies a prearranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan.”
6. Applying this principle to the facts of the present case, I find that S. 34 could not be brought into operation.
7. As already stated, the prosecution evidence is not quite clear as to whether one of the appellants came first on the scene and the others followed him later on or they all came in a body. In any case, it is evident that there is no justification for holding that there was any concert or pre-arranged plan and the attack on Balai deceased was done in concert pursuant to the pre-arranged plan. In these circumstances each one of the appellants can be held responsible only for the act committed by him and the result produced thereby. I have already pointed out that there are discrepancies in the prosecution evidence as to whether it was the appellant Bishunath alone who caused the fatal injuries on the head of Balai deceased or that all the four appellants attacked the deceased simultaneously, so that it cannot be said who it was who caused the fatal injuries on the head. The prosecution evidence has no doubt sought to connect Bishunath appellant with one of the two injuries on the head but, as already pointed out, even that evidence is not consistent. I am, therefore, of the opinion that none of the four appellants in this case can be convicted of an offence under S. 304, Penal Code. At the same time I think when four persons simultaneously attack another person with lathis, it can fairly be presumed against every one of them that he had at least the intention of causing grievous hurt. I think, therefore, that each one of the appellants in this case is guilty of an offence under S. 325, Penal Code.
8. The result, therefore, is that I allow this appeal in so far that I alter the conviction of each one of the appellants under S. 304 to one under S. 325 and I reduce the sentence imposed upon each one of the appellants from six years to four years' rigorous imprisonment. Their convictions under S. 323, Penal Code, and the sentence of six months' rigorous imprisonment each imposed by the learned Second Additional Sessions Judge will stand. The sentences will run concurrently. The appeal is otherwise dismissed. Page: 156The appellants, if they are out on bail, must surrender and undergo the unexpired portion of their sentences.
9. Appeal partly allowed.
Alert