LexKARTAR SINGH versus STATE OF PUNJAB
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2 S.C.R. SUPREME COURT REPORTS 395 KARTAR SINGH v. STATE OF PUNJAB (K. SuBBA RAO, RAGHUBAR DAYAL and J. R. MUDHOLKAR, JJ.) 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. r49 of the Indian Penal Code. The prosecu- tion 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 (r) 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 defini le 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 mus~ 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 n1istakes in recognising them. Since tliis 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, [r954] S.C.R. r45, 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 un- lawful assembly. Gore Lal v. State of U. P., Cr. A. No. r29 of r959 dated r5-r2-r960, referred to. April 26 196I Kartar Singh v. State of Punjab Raghubar Dayal J. 396 SUPREME COURT REPORTS [1962] 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 nnder s. 302 and s. 307 read withs. 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 appellant. B. K. Khanna, R. H. Dhebar and D. Gupta, for res- pondent. 1961. April 26. The Judgment of the Court was delivered by 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
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