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PETITIONER: BHAGAT SINGH

       Vs.

RESPONDENT: THE STATEGURDEV SINGH-- Caveator.

DATE OF JUDGMENT: 19/12/1951

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND AIYAR, N. CHANDRASEKHARA

CITATION:  1952 AIR   45            1952 SCR  371  CITATOR INFO :  R          1963 SC1620  (15)

ACT:     Criminal  Procedure Code (V of 1898), s.  234  (1)--Mis- joinder  of  charges--Firing single shot at two  persons  to kill them--Whether one offence or two offences.

HEADNOTE:     The  appellant  was tried in respect  of  the  following charges:  (i) causing the death of A and thereby  committing an offence punishable under s. 302, Penal Code, (ii)  firing a shot at B and 372 C  with  the intention of causing their  death  and  thereby committing  an offence punishable under s. 307, Penal  Code, and  (iii) firing a shot at D with the intention of  killing him  and thereby committing an offence punishable  under  s. 307, Penal Code.  It was contended on his behalf that  there was a misjoinder of charges as the second charge was  really a charge in respect of two offences viz., attempt to  murder B and attempt to murder C and the accused had therefore been charged  with,  and tried for, more than three  offences  in contravention  of s. 234 (1) of the Criminal Procedure  Code :.Held,  that  there was nothing wrong in the trial  as  the single  act of firing a shot at B and C is one  offence  and not two offences and the trial was not bad for misjoinder of charges.  [Their Lordships however observed that they should not  be understood as laying down the wide proposition  that in  no  case can a single act constitute more than  one  of- fence.]     Promotha  Natha  Roy v. King Emperor  (17  C.W.N.  479), Johan Subarna v. King Emperor (10 C.W.N. 520), Poonit  Singh v. Madho Bhot (I.L.R. 13 Cal. 270) and Sudheendra Kumar  Roy v. Emperor (I.L.R. 60 Cal. 643) approved.

JUDGMENT:     CRIMINAL  APPELLATE  JURISDICTION:  Criminal Appeal  No. 38 of 1950.  Appeal from the judgment and order of the  High Court  of  Patiala (Teja Singh C.J., and  Gurnam  Singh  J.)

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dated 5th October, 1950, in Criminal Appeal No. 28 of  1950, affirming  the conviction and sentence of the  appellant  by the Sessions Judge of Sangrur. Gopal  Singh and Kartar Singh, for the  appellant. Narinder  Singh, Advocate General for the Patiala  and  East Punjab States Union (Jindra Lal, with him) for the  respond- ent.     Jai  Gopal Sethi (R. L. Kohli, with him) for the  Cavea- tor.     1951. December 19.  The Judgment of the Court was deliv- ered by     FAZL  ALl J.--This is an appeal against the judgment  of the  High  Court  at Patiala upholding  the  conviction  and sentence  of  the appellant, who was tried by  the  Sessions Judge of Sangrut for the offence of murder and sentenced  to death. 373     The prosecution story is a somewhat long and complicated one,  but ignoring unnecessary details, the  material  facts may be shortly stated as follows :--     On  the 5th October, 1949, there was a  quarrel  between the appellant and one Darbara Singh, in the course of  which the  appellant attacked the latter with a phawra (a  cutting instrument).  About that time, Gurmail Singh,  the  deceased person, returned to his house, which was close to the  house of  Darbara Singh, from his cotton field, where he had  been working,  in order to take tea for his companions  who  were still  working  in his field. The  appellant  asked  Gutmail Singh  to  lend him a spear to enable him  to  kill  Darbara Singh, but since the latter refused to do so, there ensued a quarrel  between  him and the appellant, in  the  course  of which  they exchanged abuses and grappled with  each  other, and  the fight was stopped only by the intervention of  cer- tain  persons  present at the place.  It  appears  that  the appellant was greatly affected by this quarrel, and thereaf- ter  he is said to have armed himself with a rifle  and  at- tacked  3 persons in the vicinity of Gurmail Singh’s  cotton field.  He  fired  firstly at Kartar Singh,  son  of  Satwan Singh, while the latter was returning to his house from  the field  of  Gutmail Singh, but he was not  hurt.  Soon  after that,  while Gurmail Singh was returning to his field  after attending to his buffaloes in a garden which was nearby, the appellant  chased him and fired at him thereby  causing  his instantaneous  death.  Lastly, he is said to have  fired  at Kartar  Singh,  son of Bishan Singh and  one  Jangir  Singh, while  they  were raising an alarm, but  the  bullet  missed them.  Upon these allegations, the following  three  charges were framed against him :--     "(1)  That  you......   fired a shot  at  Gurmail  Singh deceased  with rifle P.I. with the intention of killing  him and  caused his death and thereby committed an offence  pun- ishable under section 302......     (2)  That  you......  fired a shot at Kartar  Singh  and Jangir  Singh with rifle P.I. with the intention of  causing death and made an attempt to cause their death 374 section 307.....    (3)  That you.......   fired a gun-shot at  Kartar  Singh s/o  Satwan Singh......   with the intention of killing  him and made an attempt to cause his death and thereby committed an offence punishable under section 307..."     It  appears that the appellant was an Instructor in  the Home Guards. and the rifle which he is said to have used had been given to him by his superior officer with 20 rounds  of ammunition.

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   To support their version of the occurrence, the prosecu- tion  examined 3 eye-witnesses whose evidence has  been  ac- cepted by both the courts below after careful scrutiny.  The learned Sessions Judge acquitted the appellant of the second and  third  charges under section 307 of  the  Indian  Penal Code, holding that there was no convincing evidence that the appellant  intended to murder Jangit Singh and the  other  2 persons. He however convicted him of the first charge  under section  302 of the Indian Penal Code and sentenced  him  to death, which sentence was later confirmed by the High Court.     The learned counsel for the appellant had very little to argue on the merits of the case, but he seriously  contended that there had been a misjoinder of charges which could  not be  tried  together  under the law, and  the  illegality  so committed had vitiated the whole trial of the appellant.  It appears that in the High Court, the line of argument on this point  was somewhat different from the line adopted in  this court.   What was stressed in that court seems to have  been that  the three incidents in respect of which the  appellant was  charged not having happened in the course of  the  same transaction,  they  could not have been  properly  made  the subject  of one trial, and for this contention reliance  was placed  mainly on section 235 (1)of the  Criminal  Procedure Code,  which  provides 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 at one trial for, every such offence." It should be noted 375 that  that  section  is only one of the  exceptions  to  the general  rule laid down in section 233 of the Code that  for every distinct offence, there shall be a separate charge and every such charge shall be tried separately. In this  court, no  reference was made to section 235, but the argument  was confined  to  the question as to whether  the  present  case falls  within  another exception of section  23’3  which  is contained in section 234 (1) which runs as ’follows :-     "When  a person is accused of more offences than one  of the  same kind committed within the space of  twelve  months from  the  first to the last of such  offences,  whether  in respect  of the same person or not, he may be charged  with, and tried at one trial for any number of them not  exceeding three."     It was argued before us that even though only 3  charges have been framed against the appellant, he has in fact  been tried for 4 offences and not 3.  The 4 offences are said  to be these :--      (1) Committing the murder of Gurmail Singh;      (2)  Attempting to murder Kartar Singh, son  of  Sarwan Singh;      (3) Attempting to murder Jangit Singh; and      (4)  Attempting to murder Kartar Singh, son  of  Bishan Singh.     The  learned  counsel contended that the fact  that  the appellant  has  been acquitted of the last  3  offences  and convicted  only of the first offence was immaterial  to  the point raised by him, and we have only to see whether all the offences  mentioned above could be properly tried  together. In  our opinion, the short reply to this contention is  that the  second charge which relates to the appellant firing  at Kartar  Singh and Jangir Singh is not a charge with  respect to  2 offences but is a charge with respect to  one  offence only.   The evidence adduced by the prosecution  shows  that the appellant fired only one bullet.  The word "offence" has been defined in the Criminal Procedure Code as meaning  "any act  or  omission made punishable by any law  for  the  time

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being in force".  There seems to be 49 376 nothing  wrong in law to regard the single act of firing  by the  appellant  as one offence only. On the other  hand,  we think that it would be taking an extremely narrow and  arti- ficial  view to split it into 2 offences. There are  several reported  cases in which a similar view has been taken,  and in  our opinion they have not been incorrectly  decided.  In Queen Empress v. Raghu Rai(1), where a person stole  several bullocks  from  the same herdsman at the same time,  it  was held  that only one offence had been committed. In  Promotha Nath Ray v. King Emperor(2), it was held that  misappropria- tion in regard to several account books constituted only one offence.  In Johan Subarna v. King EmPeror(3), it  was  held that when an attempt to cheat a number of men by speaking to them  in  a body had been committed, one  joint  charge  was valid.  In Poonit Singh v. Madho Bhot (4), it was held  that only  one  offence had been committed by a person  who  gave false  information in one statement to the police against  2 persons. In Sudheendrakumar Ray v. Emperor(5), a person  who was chased by 2 constables had fired at them several  times, but  it seems to have been rightly assumed that  the  firing did  not constitute more than one offence, though the  point was  not  specifically raised or decided.  In  our  opinion, there is no substance in the point raised, though we  should not  be understood as laying down the wide proposition  that in  no  case can a single act constitute more than  one  of- fence.     The other points urged on behalf of the appellant before us were somewhat unsubstantial points relating to the merits of  the case, which it is not usual for this court to  allow to be raised in appeals by special leave.     In our opinion, this appeal is without merit, and it  is accordingly dismissed.                                  Appeal dismissed.    Agent for the appellant: R.S. Narula.    Agent for the respondent: P.A. Mehta.    Agent for the caveator: Vidya Sagar. (1)  1881 A.W.N. 154.  (3) 10 C.W.N. 520.  (5)I.L.R, 60  Cal 643, (2) 17 C.W.N. 479.   (4) I.L.R. 13 Cal. 270. 377