Kartar Singh v. State of Punjab
RAGHUBAR DAYAL, J. -This appeal, by special
leave, iH 11gainst the judgment of the Punjab High
Court dismissing the appellant's appeal and confirming
his conviction under s. 302 ands. 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. ln
tho incident, Darshan and Nand Lal received injuries
on the one side while Daya Ram, Hamela and Kartar
Singh the appellant, rec~ived injuries on the appel
lant's side. Darshan Singh died on account of the
injuries received.
Daya Ram stated that when he, Kartar Singh,
Hamela and a few other persons were going near about
their field, Darshan, Nand Lal and others, who hap
pened 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.
2 S.C.R. SUPREME COURT REPORTS 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 self
dcfonce.
The learned Sessions Judge, after noting the allega
tions of the parties and the admitted facts about the
dispute with respect to the plot of land, said:
"It is :1lso 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 m•mber 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 isst"' mentioned above."
He further said:
"The only point therefore which requires deter
minaLion in this case is whether all or only some
of the arocused 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 receiv
ed injnries, 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 1 feel that D .. ya Ram, Hamela and
Kartara accused were accompanied by at least 9 or
SI
/\" artar Sing;.
v.
Stat~ ·Of Punjab
Raghubar
Dayal ].
196 ' 10 persons, but it is difficult to say who those 9 or
I<artar Singh 10 persons were."
v. He therefore acquitted those ten persons giving them
State of Punjab the benefit of doubt.
Raghubar
Dayal].
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 appel
lants, 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 impor
tance as to who gave the first lalkara and who start
ed 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, conse
quently, 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 wcll
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 per
sons cannot constitute an unlawful assembly; (ii) in a
case of free fight, each participant is liable for his own
2 S.C.R. SUPREME COURT REPORTS 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 consti
tute an unlawful assembly even when only three per
sons have been convicted. It is only when the num
ber 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 per
sons 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 observa
tions in Dalip Sinqh v. State of Punjab (1) of this
Court:
"Now mistaken identity has never been suggest
ed. The accused are all men of the same village
and the eye-witnesses know them by name. The
murder took place in day light 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 Naµd Lal and Chetan Singh, P. Ws. 22 and
23, named all the thirteen accused. The other pro
secution witnesses, viz., Prem Singh, P.W. 15, Puran,
P. W. 16, Jethu, P. W. 17 andNorata, 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] S.C.R. 145, 150.
Kartar Si,ngh
v.
State of Punjab
Raghubar
Dayal J.
400 SUPREME COURT REPORTS [1962}
196' It follows therefore that the finding of the Courts
below that the appellant's party formed an unlawful ](attar Singh
v. assembly and that t-he appellant is constructively
State of Punjab liable for the offences under s. 302 ands. 307, Indian
Penal Code, in view of s. 149, is correct.
Tlaghubar The second contention that in a free fight each is
Dayal f. 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 par
ties had prepared themselves for a free fight and
had armed themselves for that purpose, the ques
tion 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 com
mon object to commit an offence and therefore con
stituted them into an unlawful assembly. The injuries
they caused to the other party are caused in further
ance 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 assem
bly, 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 r959, decided on December 15, 1960.
2 S.C.R. SUPREME COURT REPORTS 401
had two incised wounds and one punctured wound '9 61
and two abrasions. The mere fact that Kartar Singh Rarta• Singh
was not connected with the dispute about the plot of v.
land is not sufficient to hold that he could not have state of Punjab
formed a common intention with the others, when he
went with them armed. The conviction under s. 302 Raghuba.
and s. 307 read with s. 149, can be converted into one Dayal J.
under s. 302 and s. 307 read with s. 34, Indian Penal
Code.
We therefore see no force in this appeal and accord
ingly dismiss it.
Appeal dismissed.
RANGILAL CHOUDHURY
v.
DAHU SAO AND OTHERS
(P. B. GAJENDRAGADKAR, K. N. WANCHOO,
K. C. DAS GUPTA and
T. L. VENKATARAMA AIYAR, JJ.)
Election-Defect in the nomination paper-If of a substantial
character-Representation uf the People Act, I95' (No. LKIII of
I95I), s. 33, sub-s. (4).
The appellant was elected as a member of the Bihar Legis
lative Assembly in a bye-election from the Dhanbad constitu
ency by a majority of votes while the nomination paper of the
respondent was rejected by the Returning Officer on the ground
that the re>'pondent's proposer had nominated him for election
from the Bihar and not Dhanbad assembly constituency inas
much as in the nomination paper he wrote the ~·ord "Bihar"
before the v.'ords "assembly constitU:ency" instead of the \Vord
"Dhanbad". This defect arose out of a mistake in the Hindi
printed form of the nomination paper which did not exactly
conform to the form prescribed by the Rules. In an election
petition by the respondent the Election Tribunal held that his
nomination paper was rightly rejected but on appeal the High
Court held that it was improperly rejected. On appeal by spe
cial leave,
Held, that in view of the mistake that occurred in the
April z6.