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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 51 398 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.