Kartar Singh Vs. State of Punjab
 INSC 189 (26 April 1961)
26/04/1961 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
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)
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.
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 holding
that there was unlawful assembly.
Dalip Singh v. State of Punjab,  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.
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
B. K. Khanna, R. H. Dhebar and D. Gupta, for
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
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 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 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
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) .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, 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
We therefore see no force in this appeal and
accordingly dismiss it.