Ghumand Singh vs The State

Chopra, J.—Dacoities in four different houses at village Satauj were committed on 12-12-1950. On a single charge under S. 395 read with S. 397, Penal Code with respect to all of them Ghumand Singh appellant and one Harney Singh were trial by the Additional District Magistrate, Sangrur. The latter of them was acquitted as the evidence of his identification by some of the witnesses was not regarded as satisfactory in order to establish his complicity. Ghumand Singh, however, was found guilty of the charge and sentenced to 7 years R.I. His appeal was heard by my learned brother and as it involved an important question of law regarding validity of the joint trial it has been referred to a larger Bench.

On merits, there is hardly any point that deserves serious consideration. It is common ground between the parties that Ghumand Singh appellant, as his sister is married in this village Satauj was already known to most of the prosecution witnesses. The dacoities in question were committed in the afternoon of 12-12-1950, and the first information report with respect to them was lodged by Surjan Singh, an eye-witness, at 4.30 A.M. The same night in Police Station Sunam at a distance of 9 kos name of the appellant as one of the dacoits and the principal part played by him were mentioned in detail in the report. At the trial as many as 9 out of the 13 witnesses who narrate the incidents at their respective houses, claim to have already known him and to have seen him amongst the dacoits. Some others profess to have recognized him only by voice, as out of fear or as ordained they did not dare look towards him.

Uniformly all of them depose that he, armed with a rifle, stood at the roof of Lal Singh''s house to terrorize the villagers. He accompanied the other dacoits when they arrived and joined them when they returned with the booty. Sajjan Singh and Bugha Singh are the persons with whom the appellant had a direct contact. The first was caught hold of by him in the lane and forcibly taken to Lal Singh''s house. Bugha Singh nephew of Lal Singh, was at the roof of his house. Ghumand Singh on reaching the roof caught hold of him and pushed him downstairs. They or as a matter of fact any one out of the several witnesses have not been shown to have any prior ill-will or grudge against the appellant or any motive to implicate him falsely. There is no reason why their evidence should not be relied upon.

(After discussing evidence his Lordship proceeded:) The appellant in his statement denied the charge and ascribed enmity as the reason why the witnesses deposed against him, the enmity being that his sister''s husband was killed at the instance of Surjan Singh. Surjan Singh denied to have had any hand in the murder and there is not a shred of evidence in support of the allegation. The accused did not produce any defense. The overwhelming independent evidence examined by the prosecution and the fact that his name, as one of the culprits, was disclosed in the first information report without loss of any time leave no doubt in my mind regarding Ghumand Singh''s complicity in the dacoities in context.

On the question of legality of a joint trial it is urged that each of the four dacoities, for which a single charge was framed, formed a separate, distinct and complete offence by itself, having nothing common in them except that they were committed in the same village and almost at the same time. It is further pointed out that even the culprits who were directly responsible for each of them were not the same. The contention, therefore, is that there should have been a separate charge for each dacoity and that each such charge should have been tried separately. On the face of it the contention appears to be somewhat attractive, but it loses force when it is considered in the light of the peculiar circumstances of this case. It is no doubt correct that each of the dacoities formed a distinct offence by itself, for which a separate charge should have been framed. The trial Court treated dacoity in the four different houses as a single offence and charged the appellant and his co-accused under Ss. 395/397, Penal Code only on one count. The conviction of the appellant also was therefore, recorded only on one count. The charge is to the following effect:

That, on 12-12-1950, at about 4 or 5 P.M., you, along with three others while armed with rifles and a pistol committed dacoity in the houses of Lal Singh, Chuhar Singh, Surjan Singh and Jagan Nath, looted cash and gold and silver ornaments therefrom, inflicted injuries to Bugha Singh, Kaki, Ajmer Kaur, Punna and Jagan Nath witnesses and thereby committed an offence falling under Ss. 395/397 of the Indian Penal Code.

As the charge shows the whole thing was not only regarded as one and the same transaction but also a single offence. They are offences of the same kind, but since each of them was committed in respect of a different person and at a different house it amounted to a distinct offence by itself, and for that there should have been a separate charge. The question of legality of a joint trial for all of them, however, depends upon different circumstances, namely, whether they were committed in the course of the same transaction. That aspect of the case shall be presently considered. So far as the lumping together of the four offences in one charge is concerned, the learned A.A.G. in the first instance contends that since they were ultimately and inseparably connected they could be rightly regarded as one single offence.

In this connection it is pointed out that the dacoities were committed in houses adjoining one another and situate in the same locality, by the same gang, at one and the same time and in furtherance of their common design to loot everyone residing in that part of the village. On the points urged it may be possible to say that the transaction was one; but I have not been able to appreciate the contention that the whole thing amounted to a single offence. For instance, if an accused at one and the same time and also at the same place attacks and causes injuries to several persons he commits as many distinct offences as the persons he attacks, although the whole thing may have been done in the course of the same transaction

Offences will be distinct if they fall under different sections of the same penal enactment or under different enactments, or when they are, committed on different occasions or against different persons even though they may fall under the same section. The rule laid down in S. 233, Criminal P.C. of framing a separate charge for every "distinct offence" applies equally to cases in which the accused may be tried together for several offences under the provisions of Ss. 234 to 239. It must, therefore, be held that a charge in this case with respect to all the dacoities is defective. But I do not regard this defect as one which under the peculiar circumstances of this case has or might have caused any prejudice to the accused or resulted in failure of justice. The specific offences of which the appellant was accused were satisfactorily proved by competent evidence. Different sets of witnesses with respect to each dacoity were examined and they deposed to facts with which they were directly concerned.

Another peculiar feature of this case, as will be presently seen, is the manner in which the dacoities were committed; it does give rise to an impression that the whole thing was a single pre-planned act. That probably is the reason which made the trial Judge frame a single charge and that too on one count only. The irregularity of a defective charge is curable under S. 537 Criminal P.C. It is not urged nor does it appear that the accused have been in any way prejudiced. As already observed, the offences were committed almost at the same time, in the same locality and in a way as if they formed one continued act. The mere fact that the charge was not properly framed does not, therefore, vitiate the trial.

The other objection is with respect to a joint trial. The general rule is that for every distinct offence there should be a separate trial. Exceptions to this rule are provided by S. 234, 235, 236 and 239. Criminal P.C. Section 236, obviously has no application to the present case. Section 234 by its very terms refers to the case of a single accused committing three offences of the same kind within the space of one year. On either ground it is of no help to the prosecution. Section 235, lays down that if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. The section does not place any limit to the number of offences but requires that they should have been committed in the course of the same transaction.

Shri Onkar Dass made a faint attempt to rely on this section by advancing an argument that as provided by the General Clauses Act, words of a statute in the singular should be taken to include the plural as well and hence S. 235, would also be applicable to a case where the accused are more than one. The contention is without force and it was conceded to be so by counsel at a later stage of his arguments. Sections 234-239, read together leave no doubt that the sections in which the word or words "a person" or "the same person" are used, have no application to the case of more than one accused. Sections 233-240 are grouped together under the heading "Joinder of Charges" and this group relates to charges both against single and several accused, but the sections relating to these respective cases are kept separate. Sections 234 & 235 by their terms refer to the case of a single accused while S. 239 expressly deals with the case where more persons than one are involved. Some of the Clauses of S. 239, would be redundant if we were to include the plural in the word "person" in Ss. 234 & 235. Such interpretation of a statute has always to be avoided. The concluding words of S. 239 "and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges" refer only to the former part of the chapter headed as "Forms of Charges" viz., Ss. 221 to 232, and do not include Ss. 234 and 235 as well. These words, in my view, do not mean that Ss. 235 and 239 are to be read together. Section 239 is, therefore, the only section which refers to a Joint trial of more persons than one.

Coming to S. 239 and placing his reliance on its Cl. (D), Learned Counsel for the State contends that the different offences in this case were committed in the course of the same transaction and therefore the persons accused of them could be tried together. In the alternative he takes his stand on Cl. (c) of the Section and urges that the accused could be tried together as the offences were of the same kind within the meaning of S. 234, and were committed by them Jointly not only within the prescribed period of 12 months but on one and the same day. His argument is that the limit of three placed by S. 234 for the Joint trial of such offences in the case of a single accused does not apply to Cl. (c) of S. 239, and that under the later section when the accused are more than one they can be tried together for any number of offences of the same kind provided they are all committed within the space of 12 months.

I have not been able to appreciate the ingenious argument or to see any force in it. Counsel appears to be misled by the fact that in Cl. (c) of S. 239, the words "any number of them not exceeding three", appearing in S. 294 are not repeated. A simple reading of the clause shows that after a reference to S. 234, everything that is contained therein need not have been repeated, and that the limit of three placed by S. 234 is equally applicable to a case triable under that clause. Clause (c) of s. 239, provides that persons accused of more than one offence of the same kind, within the meaning of s. 234, committed by them jointly within the period of 12 months may be charged and tried together.

In S. 239, as it stood before the amendment of 1923, there was no provision corresponding to Cl. (c) of the present section and it was obviously introduced to set at rest the divergence of opinion on the question whether the word "person" in S. 234, could be read as including "persons" and therefore'' several persons also could be tried together for more than one offence to the limit of three, if they were committed within a space of 12 months. Addition of the new clause expressly makes what is provided by S. 234, applicable to cases where the accused are more than one and are sought to be tried together, but this must be with the same limitations and under the same circumstances as laid down in S. 234.

The words "within the meaning of S. 234", in the clause govern the preceding part and define the offences which can be tried together where the accused are more than one. The limit of three distinct offences which can be tried together in the case of a single accused would, therefore, as well apply to a case that falls under the said clause. It seems to "be extremely illogical that while a single accused can be tried only for three distinct offences of the same kind committed within the prescribed period, if the number of the accused is more than one they can be tried together for any number of offences of the kind. That could never have been the intention of the legislature, nor does it appear to be so from the language of the clause and its plain meaning. The alternative contention of the respondent, is therefore, rejected and it is held that Cl. (c) has no application, as the offences jointly tried, though of the same kind, were more than three.

That leaves us with cl. (d) of S. 239 and for that it is necessary that the offences should have been committed in the course of the same transaction. For the application of this clause the objection of S. Ijagar Singh is two-fold: (1) that the several offences were not proved to have been committed in the course of the same transaction, and (2) that since the offences were of the same kind falling under the same section of Penal Code they could not be said to be "different offences" as required by the clause. The second contention based as it is on a misconception of the word "different" in cl. (d) can be readily rejected. The argument is that cl. (d) can only apply if the offences, though committed in the course of the same transaction, are different in the sense that they are not of the same kind. Counsel wants the word "different" to be read as "dissimilar'' and taken to have been used in contradistinction of the words "of the same kind" in S. 234 and Cl. (d) of S. 239. Offences of the same kind committed with respect to different persons, according to him, would not be "different" under Cl. (d) of S. 239.

The ordinary meaning of the word "different" is separate, distinct unlike or dissimilar. Offences may be different because they are of different kind and also because, though of the same kind, they are committed with respect to different persons. In other words offences may be different because of their nature or because of their victims or the persons affected by them. Again, they may be different if committed on different occasions, even though they are of the same kind & are committed against the same person. I do not see any justification in reading the word "different" as "dissimilar" or "not of the same kind" and thus limiting its scope as suggested by counsel. If that had been the intention of the legislature, the clause would have been differently worded. Every word of a statute is to be ascribed its natural and ordinary meaning & it is not permissible to limit it to a particular sense or add anything to the words used in this statute. While interpreting you must not imply anything in them which is inconsistent with the words expressly used. It is always desirable to adhere to the words of the Act, giving to them that sense which is their natural import in the order in which they are placed.

I cannot read the clause as meaning to say that while persons committing different kinds of offences in the course of the same transaction can be tried together they shall; under the same circumstances, be tried separately for each offence if the offences, though committed against different persons or on different occasions, happen to be of the same kind For instance, it will then be permissible to try together persons jointly attacking some others only if injuries caused to the victims are of different nature, i.e., simple to some and grievous to others, while if the injuries to everyone of them are simple or grievous in nature they shall be tried separately. That could never be the Intention of the legislature nor does it appear to be so from a plain and grammatical interpretation of the clause.

It has then to be seen if the four dacoities were committed in the course of the same transaction. The word "transaction" has not been defined in the Code itself. As observed by Broom-field J. in-''Shapurji Sorabji v. Emperor, AIR 1936 Bom 154 (A):

It is not intended to be interpreted in any artificial or technical sense. Common and ordinary use of language must decide whether on the facts of a particular case, one is concerned with one transaction or several transactions.

The word carries a very wide connotation and covers a series of acts connected together in one way or the other. There are various tests to judge whether different acts are part of the same transaction, such as (1) proximity of time, (2) unity of place, (3) unity or community of purpose or design, and (4) continuity of action. The last one of these is generally taken to be the main test. As to what is the same transaction must depend on the facts and circumstances of each particular case. No hard and fast rule of universal application or one that may be applicable to every set of circumstances can be laid down in this connection. It is more a question of fact than of law and each case has to be decided on its own merits.

I have, therefore, to revert to the facts of the present case and examine them in this light. A look at the site-plan shows that the houses are situate in one neighbourhood. Houses of Lal Singh and Surjan Singh lie in the same compound. One being in front of the other House of Surjan Singh adjoins that of Lal Singh and the next house belongs to Jagan Nath. All of them not only open on the same lane but are in so close vicinity that they form a compact locality, the house of Lal Singh being the central one. Ghumand Singh appellant armed with a rifle stood at the roof of this central house of Lal Singh to scare away and terrify the people and thereby facilitate plundering of the adjoining houses. From that key position he guarded the nefarious operations of his companions. One more of the dacoits similarly armed patrolled the lane in front of the houses for the same purpose. The rest of them went in turns or in batches into the houses to accomplish the main part of the common object. One house was pillaged by only one of these three, another by two and the rest by all three of them. They went on running into one or the other house and collecting whatever they could lay their hands on in the locality. Each act of crime was committed by the same gang in pursuance of the same object. The whole thing happened at one and the same time and almost at the same place and seems to have been done according to a pre-arranged plan.

The proximity of time and place, sameness of purpose and continuity of action of the gang lead to the irresistible inference that the dacoities were committed according to a set design and in the course of the same transaction. There is no limit to number of offences specified in S. 239(d). The one and the only limitation there is that the accusation is of offences committed in the course of the same transaction. We are, therefore, of opinion that there is no illegality in joint trial of the accused in this case.

The two cases which have any relevancy to the point in question, cited on behalf of the appellant, were decided on different set of facts. The first of these is a Single Bench decision of the Oudh Chief Court- AIR 1934 325 (Oudh) The facts of the case have not been mentioned with any detail in the judgment and only a reference to the charge is made. The charge is that six distinct offences of dacoity were committed on the same night at various places situate on a road. From this it appears that the only thing common in the dacoities was that they were committed by the same gang, on the same road but at different places, and on the same night. Each offence was complete when it was committed and the dacoits moved on together places in expectation of meeting some other chance passenger on the road. There was no continuity of action when different persons were robbed at different times and places. In view of these facts the learned Assistant Advocate General in that case expressed his inability to support the procedure adopted by the trial Judge in folding a joint trial and the learned Judge proceeded to consider the effect of it.

The other case is Raj Narain and Others Vs. The State, The village in which several dacoities by as many as 16 persons were alleged to have been committed during the same night formed a hamlet of another neighboring village. On a consideration of the evidence in the case the learned Judge arrived at the conclusion that "the prosecution has not been able to establish any connection between the different dacoities", and observed as follows:

The only thing common about them is that the houses are situate in the particular hamlet. This is not sufficient to make the dacoities a part of the same transaction. If a person or body of persons commits a number of similar offences within a certain area, the offences do not necessarily form part of the same transaction, unless some continuity of purpose is established between them.

After a reference t AIR 1934 325 (Oudh) and another unreported judgment of his own Court, the learned Judge held that the dacoities in the case before hint were not proved to have been committed in the course of the same transaction.

In an earlier case before a Division Bench of the same High Court -''Ram Parsad v. Emperor'', AIR 1923 AP 137 (1) (D), the facts were these:

A gang of dacoits assembled on a high way two EKKAS passed carrying passengers, the passengers were robbed and maltreated; after another interval a cart passed carrying passengers; these passengers were also robbed and maltreated. On an objection regarding irregularity of a joint trial with respect to the several dacoities having been raised, the learned Judge observed:

Now it is perfectly clear to us upon the evidence that the same gang of dacoits was present during the whole time and that a dacoity was committed in each instance. It is not material whether all the members of the gang took an active part in each dacoity. It is not material if as many as five of them took an active part in any one dacoity. They were there. Some of them robbed each EKKAS and the cart and each act of crime was committed by the same gang in pursuance of the same object. Thus clearly all these offences were committed in the same transaction and Ss. 235 and 239, Criminal P.C. have application.

Reference to S. 235, Criminal P.C. was probably unnecessary as the case was expressly and exclusively covered by Cl. (d) of S. 239. In any case, both the sections require that the distinct offences should have been committed in the course of the same transaction, and that was held to be proved on the said facts by the Division Bench.

Without any further indication of continuity of action and some connection between them several dacoities committed in a village on the same night by the same gang may not be regarded as committed in the course of the same transaction. But in the present case, as already observed, such indications are not only not lacking but are sufficiently clear.

Neither on merits nor on the question of law we see any valid reason to interfere in the order of the trial Judge. Ghumand Singh''s appeal is consequently dismissed.

Gurnam Singh J.:

I agree with the conclusion arrived at by my learned brother.