minal 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
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 section 302 and section 307 read with section 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 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 section 302 read with section 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 sections 302 and 307 read with section 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 sections 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 vs 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 PW 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 1954CR 145150
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 section 302 and section 307 Indian Penal Code in view of section 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 vs 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 section 307 read with section 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 section 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 section 302 and section 307 read with section 149 can be converted into one under section 302 and section 307 read with section 34 Indian Penal Code
We therefore see no force in this appeal and accordingly dismiss it
Appeal dismissed


Summary:
The appellant was tried along with two others under sections 302 and 307 read with section 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 sections 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 vs State of Punjab   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 vs 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 section 302 and section 307 read with section 34 of the Indian Penal Code