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PETITIONER:

KARTAR SINGH

Vs.

RESPONDENT:

STATE OF PUNJAB

DATE OF JUDGMENT:

26/04/1961

BENCH:

DAYAL, RAGHUBAR

BENCH:

DAYAL, RAGHUBAR

SUBBARAO, K.

MUDHOLKAR, J.R.

CITATION:

1961 AIR 1787 1962 SCR (2) 395

CITATOR INFO :

E 1963 SC 174 (12)

F 1974 SC 323 (7,9)

RF 1975 SC1917 (14)

R 1976 SC1084 (12)

R 1976 SC2207 (51)

ACT:

Unlawful Assembly-Conviction of three of thirteen alleged

assailants-Acquittal of the rest-Legality of conviction-

Indian Penal Code, 1860 (Act XLV of 1860), ss. 149, 302,

307, 34.

HEADNOTE:

The appellant was tried along with two others under ss. 302

and 307 read with s. 149 of the Indian Penal Code. The

prosecution case against them was that they along with ten

others had taken part in a free fight resulting in the death

of one belonging to the other side. The Sessions judge held

that the accused were accompanied by nine or ten others but

that it was not proved who they were. He, therefore, gave

them the benefit of the doubt and acquitted them. The High

Court on appeal affirmed that decision. It was urged on

behalf of the appellant in this Court that (1) the offence

of unlawful assembly had not been made out and (2) that in a

free fight each participant is liable for his own act and

the conviction of the appellant, who had caused no injury to

the deceased, was untenable under ss. 302 and 307 of the

Indian Penal Code.

Held, that the contentions must fail.

It is only when the number of the alleged assailants is

definite and all of them are named and the number of persons

proved to have taken part in the incident is less than five

that it can be said that there was no unlawful assembly.

The acquittal of the remaining named persons must mean that

they were not in the incident. The fact that they were

named, excludes the possibility of other persons to be in

the appellant's party and especially when there can be no

occasion to think that the witnesses naming all the accused

could have committed mistakes in recognising them.

Since this was not the position in the instant case, it

could not be said that the courts below were wrong in

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holding that there was unlawful assembly.

Dalip Singh v. State of Punjab, [1954] S.C.R. 145, referred

to.

It is not correct to say that in a premeditated free fight

each is liable for his individual act. Where the accused

party prepare for a free fight and can, therefore, have no

right of private defence, their intention to fight and cause

injuries to the other party amounts to a common object so as

to constitute unlawful assembly.

Gore Lal v. State of U. P., Cr. A. No. 129 of 1959 dated

15-12-1960, referred to.

396

Even assuming that in the instant case the finding that

there were more than five persons in the appeLlant's party

was wrong, the conviction of the appellant would be

maintainable under s. 302 and s. 307 read with S. 34 of the

Indian Penal Code.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 146 of

1959.

Appeal by special leave from the judgment and order dated

January 5, 1959, of the Punjab High Court in Criminal Appeal

No. 238 of 1958.

J. N. Kaushal and Naunit Lal, for the appellant.

B. K. Khanna, R. H. Dhebar and D. Gupta, for respondent.

1961. April 26. The Judgment of the Court was delivered by

RAGHUBAR DAYAL, J. -This appeal, by special leave, is

against the judgment of the Punjab High Court dismissing the

appellant's appeal and confirming his conviction under s.

302 and s. 307 read with s. 149, Indian Penal Code.

The case for the prosecution was that the appellant and

twelve other persons who were tried with him, had, on

account of a dispute about the possession of a plot of land,

assaulted Darshan, deceased, and his companions, when they

were returning from their fields and that Darshan Singh and

his companions also struck the appellant's party in self-

defence. In the incident, Darshan and Nand Lal received

injuries on the one side while Daya Ram, Hamela and Kartar

Singh the appellant, received injuries on the appellant's

side. Darshan Singh died on account of the injuries

received.

Daya Ram stated that when be, Kartar Singh, Hamela and a few

other persons were going near about their field, Darshan,

Nand Lal and others, who happened to be sitting on a well,

challenged them and Nand Lal remarked that he would not let

him (Daya Ram) escape. At this fight ensued between both

the parties in which injuries were inflicted on each, other.

Daya Ram said that he did not know who speared Darshan,

deceased.

397

Kartar Singh stated that a member of Nand Lal's party caused

a spear blow in his abdomen and that he then ran away. He

states that he did not cause any injury to anybody.

Hamela stated that Darshan and others assaulted his party

when they were going to plough the land in dispute and that

they caused them, injuries in selfdefence.

The learned Sessions Judge, after noting the allegations of

the parties and the admitted facts about the dispute with

respect to the plot of land, said:

"It is also not denied that the parties in

this case instead of taking resort to law

wanted to force the issue by the force of arms

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and for that purpose both the parties

collected number of persons from Seel and

other villages who were armed with deadly

weapons such as spears, gandasis and sticks

and in order to decide the issue had a pitched

fight which was pre-concerted. The Public

Prosecutor therefore maintained that under

these circumstances the question of right of

self-defence to any party does not arise."

The learned Sessions Judge also said:

"This proposition of law has not been

challenged by the defence. As observed above,

in this case, both the parties, in order to

assert their rights, had a free fight which

was pre-concerted with the set purpose of

forcing the issue mentioned above."

He further said:

"The only point therefore which requires

determination in this case is whether all or

only some of the accused did participate in

this assault,"

and came to the conclusion that three accused, viz., Daya

Ram, Hamela and Kartar Singh, who had admitted their

presence in the incident and had received injuries, were

proved to have taken part in that free fight, and that the

participation of the other ten accused in the case was not

established beyond doubt. He, however, said:

"Although I feel that Daya Ram, Hamela and Kartara accused

were accompanied by at least 9 or

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398

10 persons, but it is difficult to say who those 9 or 10

persons were."

He therefore acquitted those ten persons giving them the

benefit of doubt.

The three convicted persons preferred an appeal to the High

Court.

Two questions were urged at the hearing. One was that when

there was no evidence that there were more than five persons

in the fight on the side of the appellants, the learned

Sessions Judge could not, in law, record a conviction under

s. 302 read with s. 149, he having acquitted the other ten

persons specifically named by the P. Ws., as being the

companions of the appellants. The other point was that the

other party was the aggressor.

The High Court, on the first point, said.:

"The circumstances of this case leave no

manner of doubt in our mind that there were a

large number of persons on the side of the

appellants and this number must have exceeded

five, and was more or less near the number of

persons who were actually accused in the

case."

On the second point, it said:

"We have no manner of doubt in our mind that

there is no question of right of private

defence and it is a clear case of a free fight

between both the parties. It would not

therefore be of any importance as to who gave

the first lalkara and who started the fight."

It further held that the appellant's party formed an

unlawful assembly and its common object was to cause

injuries to the opposite side which could result in the

ordinary course of nature in death and, consequently, the

conviction of the three appellants, whose participation

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could not be doubted, under ss. 302 and 307 read with s.

149, Indian Penal Code, was well-based and must be upheld.

Two points have been urged in this Court: (i) When ten out

of the thirteen persons charged with the offence have been

acquitted, the remaining three persons cannot constitute an

unlawful assembly; (ii) in a case of free fight, each

participant is liable for his own

399

individual act and as the appellant is not proved to have

actually caused any injury to Darshan or Nand Lal, he could

not be convicted of the offences under ss. 302 and 307.

If the Courts below could legally find that the actual

number of members in the appellant's party were more than

five, the appellant's party will constitute an unlawful

assembly even when only three persons have been convicted.

It is only when the number of the alleged assailants is

definite and all of them are named, and the number of

persons found to be proved to have taken part in the

incident is less than five, that it cannot be held that the

assailants' party must have consisted of five or more

persons. The acquittal of the remaining named persons must

mean that they were not in the incident. The fact that they

were named, excludes the possibility of other persons to be

in the appellant's party and especially when there be no

occasion to think that the witnesses naming all the accused

could have committed mistakes in recognizing them. This is

clear from the observations in Dalip Singh v. State of

Punjab (1) of this

Court:

"Now mistaken identity has never been suggest-

ed. The accused are ail men of the same

village and the eye-witnesses know them by

name. The murder took place in daylight and

within a few feet of the two eye-witnesses."

The same cannot be said in this case. The witnesses are

from village Seel. A good number of the accused are from

other villages.

Only Nand Lal and Chetan Singh, P. Ws. 22 and 23, named all

the thirteen accused. The other prosecution witnesses,

viz., Prem Singh, P.W. 15, Puran, P. W. 16, Jethu, P. W. 17

and Norata, P. W. 18, did not name all the thirteen accused.

None of them named more than seven accused and all of them

said that there were thirteen persons in the appellant's

party. In this state of evidence, it is not possible to say

that the Courts below could not have come to the conclusion

that there were more than five persons in the appellant's

party.

(1) [1954].C.R. 145,150.

400

It follows therefore that the finding of the Courts below

that the appellant's party formed an unlawful assembly and

that the appellant is constructively liable for the offences

under s. 302 and s. 307, Indian Penal Code, in view of s.

149, is correct.

The second contention that in a free fight each is liable

for an individual act cannot be accepted in view of the

decision of this Court in Gore Lal v. State of U. P. (1).

This Court said in that case-

"In any event, on the finding of the Court of

first instance and of the High Court that both

the parties had prepared themselves for a free

fight and had armed themselves for that

purpose, the question as to who attacks and

who defends is wholly immaterial,"

and confirmed the conviction under s. 307 read with s. 149,

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Indian Penal Code. It may, however, be noted that it does

not appear to have been urged in that case that each

appellant could be convicted for the individual act

committed by him. When it is held that the appellant's

party was prepared for a fight and to have had no right of

private defence, it must follow that their intention to

fight and cause injuries to the other party amounted to

their having a common object to commit an offence and

therefore constituted them into an unlawful assembly. The

injuries they caused to the other party are caused in

furtherance of their common object. There is then no good

reason why they be not held liable, constructively, for the

acts of the other persons of the unlawful assembly in

circumstances which makes s. 149, Indian Penal Code,

applicable to them.

Even if the finding that there were more than five persons

in the appellant's party be wrong, we are of opinion that

the facts found that the appellant and his companions who

were convicted had gone from the village armed and

determined to fight, amply justified the conclusion that

they had the common intention to attack the other party and

to cause such injuries which may result in death. Darshan

had two incised wounds and one punctured wound. Nand Lal

(1) Criminal Appeal No. 29 of 1950, decided on December 15,

1960.

401

had two incised wounds and one punctured wound and two

abrasions. The mere fact that Kartar Singh was not

connected with the dispute about the plot of land is not

sufficient to hold that he could not have formed a common

intention with the others, when he went with them armed.

The conviction under s. 302 and s. 307 read with s. 149 can

be converted into one under s. 302 and s. 307 read with s.

34, Indian Penal Code.

We therefore see no force in this appeal and accordingly

dismiss it.

Appeal dismissed.