# BHANWAR SINGH & ORS v. STATE OF M.P

- **Citation:** [2008] 9 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2008-05-16
- **Case number:** Criminal Appeal No. 300 of 2007
- **Bench:** S.B. Sinha, Harjit Singh Bedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhanwar-singh-ors-v-state-of-m-p-24847
- **Pages:** 45

## Headnote

Penal Code, 1860:
Sections 3021149, 147, 148, 3071149 - Unlawful assembly - Armed attack - Causing grievous injuries - Death of c
one person and injuries to many - PWs injured witnesses -
Accused convicted and sentenced to various terms of imprisonment including life imprisonment - High Court not accepting some of the findings of Trial Court - On appeal, Held: It is
not necessary to show which accused caused the fatal injuryD
All the three accused liable for commission of the offence exceeding their right of private defence - Exercise of right of
private defence can never be vindictive or malicious .:.... Theory
of free fight excluded - Common object proved - Four accused held guilty of s.304 Part I !PC - Some of the accused E
though did not take part in causing death of the deceased,
were present and participated in abuse and scuffles - Hence
guilty under s.3231149 /PC and also guilty of individual act on
their part - Sentenced accordingly - One accused acquitted
"
since he did not commit any avert act.
F
S. 96 - Right of private defence - Extent of and limitations - Discussed.
Appellants along with A2, AS, A7 (all the three since
deceased) were held guilty of committing offences punG
ishable under Sections 302/149, 147, 148 and 307/149 IPC
and sentenced to undergo life imprisonment, three months
rigorous imprisonment and fine of Rs.100/- each ..
Accused A-1, A-2, A-3, A-4, A-5, A-16, A-17 and A-18
1
H
2
SUPREME COURT REPORTS
[2008] 9 S.C.R.
A were found guilty also under s.148 and sentenced to three
months rigorous imprisonment and a fine of Rs.100/-
each.
While holding the accused guilty, the Sessions Judge
B
opined that there had been a free fight between the parties; that the prosecution had not disclosed the entire
genesis of the occurrence; that the injuries on the person of three accused had not been explained by the prosecution; and that all the witnesses of the prosecution side
attempted to conceal the injuries caused to Mohan Singh,
c Manohar Singh and Laxman Singh.
In the impugned judgment, the High Court held that
there was no free fight between the parties; that the plea
of self-defence was not available to the appellants; that
D the appellants were aggressors as they came heavily
armed to the house of complainant Jaswant Singh and
started the assault; that the injuries to the three accused
were caused in the right of private defence of the complainant party; and that Accused Nos. 16, 17 and 18, who
E
were arrested later on, were not prejudiced by non-ex-
.r
amination of the witnesses in their presence having re-
•' .
gard to th.e provision of Section 465 of the Code of Crimi-
..
nal Procedure.
In these appeals the main issue involved related to
F the extent of right of private defence.
Partly allowing the appeals, the Court
HELD: 1.1 Jaswant Singh and Bhom Singh (father
and son) do not appear to be belonging to any group.
G They merely took a lead to pacify both the groups. It is
only when Jaswant Singh was injured and accused persons started assaulting him and some others, Bhom
)r
Singh (PW-19) caused an injury to Kuber Singh. Kuber
Singh could have exercised his right of private defence;
H but he not only fired a shot at Bhom Singh (PW-19), he
y
BHANWAR SINGH & ORS. v. STATE OF
3
M.P.
fired shots which had hit Prem Singh and three shots A
which had hit Hakam Singh in his stomach, legs and
hands. It is not correct that Bhom Singh (PW-19) had
caused injuries to any other person. Kuber Singh evidently used more force than needed. [Para 35] [24-C-E]
1.2 Apart from Mohan Singh, other persons were also 8
armed with guns, namely, Kripal Singh (A-16), Bhupendra
Singh (A-17) and Kuber Singh. It may be true that Hakam
Singh had not taken the name of Bhupendra Singh (A17), but all other witnesses, namely, Jaswant Singh,
Shivnath Singh, Ram Pratap Singh, Rajendra Singh and C
Bhupendra Singh (PW-21) categorically stated that he had
also fired at Prem Singh. His name also was mentioned in
the First Information Report. It i

## Text

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[2008] 9 S.C.R. 1
BHANWAR SINGH & ORS.
A
v.
STATE OF M.P.
(Criminal Appeal No. 300 of 2007)
MAY 16, 2008
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.)
Penal Code, 1860:
Sections 3021149, 147, 148, 3071149 - Unlawful assembly - Armed attack - Causing grievous injuries - Death of c
one person and injuries to many - PWs injured witnesses -
Accused convicted and sentenced to various terms of imprisonment including life imprisonment - High Court not accepting some of the findings of Trial Court - On appeal, Held: It is
not necessary to show which accused caused the fatal injuryD
All the three accused liable for commission of the offence exceeding their right of private defence - Exercise of right of
private defence can never be vindictive or malicious .:.... Theory
of free fight excluded - Common object proved - Four accused held guilty of s.304 Part I !PC - Some of the accused E
though did not take part in causing death of the deceased,
were present and participated in abuse and scuffles - Hence
guilty under s.3231149 /PC and also guilty of individual act on
their part - Sentenced accordingly - One accused acquitted
"
since he did not commit any avert act.
F
S. 96 - Right of private defence - Extent of and limitations - Discussed.
Appellants along with A2, AS, A7 (all the three since
deceased) were held guilty of committing offences punG
ishable under Sections 302/149, 147, 148 and 307/149 IPC
and sentenced to undergo life imprisonment, three months
rigorous imprisonment and fine of Rs.100/- each ..
Accused A-1, A-2, A-3, A-4, A-5, A-16, A-17 and A-18
1
H
2
SUPREME COURT REPORTS
[2008] 9 S.C.R.
A were found guilty also under s.148 and sentenced to three
months rigorous imprisonment and a fine of Rs.100/-
each.
While holding the accused guilty, the Sessions Judge
B
opined that there had been a free fight between the parties; that the prosecution had not disclosed the entire
genesis of the occurrence; that the injuries on the person of three accused had not been explained by the prosecution; and that all the witnesses of the prosecution side
attempted to conceal the injuries caused to Mohan Singh,
c Manohar Singh and Laxman Singh.
In the impugned judgment, the High Court held that
there was no free fight between the parties; that the plea
of self-defence was not available to the appellants; that
D the appellants were aggressors as they came heavily
armed to the house of complainant Jaswant Singh and
started the assault; that the injuries to the three accused
were caused in the right of private defence of the complainant party; and that Accused Nos. 16, 17 and 18, who
E
were arrested later on, were not prejudiced by non-ex-
.r
amination of the witnesses in their presence having re-
•' .
gard to th.e provision of Section 465 of the Code of Crimi-
..
nal Procedure.
In these appeals the main issue involved related to
F the extent of right of private defence.
Partly allowing the appeals, the Court
HELD: 1.1 Jaswant Singh and Bhom Singh (father
and son) do not appear to be belonging to any group.
G They merely took a lead to pacify both the groups. It is
only when Jaswant Singh was injured and accused persons started assaulting him and some others, Bhom
)r
Singh (PW-19) caused an injury to Kuber Singh. Kuber
Singh could have exercised his right of private defence;
H but he not only fired a shot at Bhom Singh (PW-19), he
y
BHANWAR SINGH & ORS. v. STATE OF
3
M.P.
fired shots which had hit Prem Singh and three shots A
which had hit Hakam Singh in his stomach, legs and
hands. It is not correct that Bhom Singh (PW-19) had
caused injuries to any other person. Kuber Singh evidently used more force than needed. [Para 35] [24-C-E]
1.2 Apart from Mohan Singh, other persons were also 8
armed with guns, namely, Kripal Singh (A-16), Bhupendra
Singh (A-17) and Kuber Singh. It may be true that Hakam
Singh had not taken the name of Bhupendra Singh (A17), but all other witnesses, namely, Jaswant Singh,
Shivnath Singh, Ram Pratap Singh, Rajendra Singh and C
Bhupendra Singh (PW-21) categorically stated that he had
also fired at Prem Singh. His name also was mentioned in
the First Information Report. It is not necessary to show
that who had caused fatal injury. All of them had fired at
Prem Singh, and he had suffered a large number of injuD
ries. Such injuries caused to him were likely to cause his
death. All the accused persons, namely, Bhupendra
Singh, Kuber Singh and Mohan Singh, therefore, are
clearly liable for commission of the offence exceeding
their right of private defence. [Para 36] [24-F-H; 25-A-B]
E
2. So far as the plea of free fight is concerned, the
High Court has rightly rejected the findings of the Trial
Court. The number of accused persons was 18; three of
them came in a tractor with guns. The theory of free fight,
therefore, must be excluded. [Para 37] [25-C]
F
Charan Singh v. State of UP (2004) 4 SCC 205; Sukha
· v. State of Rajasthan AIR 1956 SC 513 and Rachamreddi
Chenna Reddy v. State of Andhra Pradesh (1999) 3 SCC 97
·"'" retied on. ·
·
Gajanand & Ors. V State of Uttar Pradesh AIR 1954 SC
695" - referred to.
G
, Purari v. State of Rajasthan (1976) 1 SCC 28 and Bachan
Singh v. State of Punjab 1993 (supp.(2) SCC 490 - held inH
4
SUPREME COURT REPORTS
[2008] 9 S.C.R.
A
applicable.
3.1 All of the accused were, at the very least, armed
r
with weapons capable of causing grievous hurt. The presence of weapons such as 12 bore guns and spears leads
to the inference that that the accused persons were preB
pared to cause death. Moreover, the arrival of three of the
accu·sed on a tractor with guns shows that there was
some sort of prior concert, at least among those three
-l'·
accused, prior to arriving at the scene of the crime regarding preparedness to cause death in the eventuality of an
c
armed assault. The incident was precipitated by the aggressive act of Manohar Singh pelting Jaswant Singh,
who was trying to pacify both groups, with a stone. Following this, only when Jaswant Singh was injured and
the accused persons started assaulting him and some
·o
others, Bhom Singh (PW-19) caused an injury to Kuber
Singh (A-18), who then proceeded to fire shots at Bhom
Singh, and also shot Prem Singh (the deceased) and
Hakam Singh. Mohan Singh, Kripal Singh and Bhupendra
Singh were also armed with guns and, on appreciation of
E . the evidence, all of them had fired at Prem Singh, causing
injuries to Prem Singh which were likely to cause death.
Thus, it is clear that the common object of the accused in
r
the instant case falls under Section 141, thirdly as the common object of th~ unlawful assembly was to commit an
'offence'. In the instant case, the offences intended were
F
against the human body. [Para 39] [28-A-H]
~
3.2 In the instant case, the unlawful assembly came
..
together, heavily armed, with the common object of causing at the very least grievous hurt to their adversaries in
G
the course of an armed assault which could lead to more
serious injuries. Given the circumstances in which this
assembly came together and given that all parties were
aware that among them, certain members carried weap-
.,,..
ons like guns and spears, even if it is held that the comH
mon object of the assembly was not to cause death, it
J
BHANWAR SINGH & ORS. v. STATE OF
5
M.P.
wo4ld. not be an unreasonable inference that all the acA
cus~d knew that the offence of culpable homicide was
likely to be committed in prosecution of such an armed
assault on another group which was not prepared to withstand;such an attack, bringing about the application of
the second portion of Section 149. Therefore, any of the B
•taccused"found to have participated in the ;;issault should
be held gyilty. Conviction under the aforesaid provisions
is not limited to those who fired guns. [Para 39] [29-A-E]
Gurmukh Singh v. State of Haryana JT 1995 (8) SC 208
- relied on.
C
4. The prosecution witnesses had clearly stated that
Shyam Singh and Kripal Singh (A-16) had attacked Jaswant
Singh. He sustained dhariya blows on his head. According to Bhom Singh (PW-19), Mohan Singh had fired at him, 0
whereupon he became unconscious. The evidences of the
witnesses clearly establish as to how the offence took
place. It is evident that at least six p'ersons, namely,
Bhupendra Singh together with Laxman Singh, Mohan
Singh, Kripal Singh (A-16), Kuber Singh and Kripal Singh E
(A-12) formed a common object. [Paras 40, 41] [29-F-G]
5.1 The plea of.private defence has been brought up
by· the 'appellants. For.this plea to succeed in totality, it
rnust ·be ·.proved ·that there existed a right to private defence in favour ofthe accused, and that this right extended
F
to causing death. Hence, if the court were to reject this
plea, there are two possible ways in which this may be
done. On one hand, it may be held that there existed a
right to private defence of the body. However, more harm
than necessary was caused or, alternatively, this right did G
not extend to causing death. Such a ruling may result in
the application of Section 300, Exception 2, which states
that culpable homicide is not murder if the offender, in
the exercise in good faith of the right of private defence
of person or property, exceeds.the power given to him by H
6
SUPREME COURT REPORTS
[2008] 9 S.C.R.
A law and causes the death of the person against whom he
y
is exercising such right of defence without premeditation,
and without any intention of doing more harm than is neeessary for the purpose of such defence. The other situation is where, on appreciation of facts, the right of private
B defence is held not to exist at all. The present case would
fall into the latter category as facts clearly establish a common object to orchestrate an armed attack of such a serious nature that, even if the common object itself was not
to cause death, the accused can be said to have been
c possessed of the knowledge that the offence of murder/
culpable homicide would be committed in prosecution of
this common object, and such a common object is irreconcilable with the right to private defence. [Paras 43, 44]
[30-E-H; 31-A-B]
D
5.2 In the instant case, the facts demonstrate clearly
that the accused were the aggressors, and their object
was not that of defending themselves by any stretch of
the imagination. [Para 44] [31-C]
E
Sone Lal v. State of UP, AIR 1981 SC 1379; Triloki Nath v.
State of UP AIR 2006 SC 321 and Bishna@ Bhiswadeb Mahato
~ ..
v. State of West Bengal, (2005) 12 SCC 657 - relied on.
5.3 The right of private defence is a defence right. It
~
is neither a right of aggression or of reprisal. There is no
~·
F right of private defence where there is no apprehension
of danger. The right of private defence is available only to
one who is suddenly confronted with the necessity of
averting an impending danger not of self creation. Necessity must be present, real or apparent. [Para 51] [38-F]
G
5.4 The basic principle underlying the doctrine of the
right of private defence is that when an individual or his
'iproperty is faced with a danger and immediate aid from
the state machinery is not readily available, that individual
is entitled to protect himself and his property. That being
H so, the necessary corollary is that the violence which the
BHANWAR SINGH & ORS. v. STATE OF
7
M.P.
"
citizen defending himself or his property is entitled to use A
must not be unduly disproportionate to the injury which
is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The
means and the force a threatened person adopts at the
spur of the moment to ward off the danger and to save
B
himself or his property cannot be weighed in golden
scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as
....
to whether the means and force adopted by the threatened person was proper or not. Answer to such a qμes- c
tion depends upon host of factors like the prevailing circumstances at the spot, his feelings at the relevant time;
the confusion and the excitement depending on the nature of assault on him etc. Nonetheless, the exercise of
the right of private defence can never be vindictive or D
)..
malicious. It would be repugnant to the very concept of
private defence. [Para 52] [38-G-H; 39-A-C]
Gurdatta Mal v. State of UP AIR 1965 SC 257; Onkarnath
Singh and Others v. The State of UP (1975) 3 sec 276; State
of M.P v. Ramesh (2005) 9 SCC 705; Babula/ Bhagwan E
Khandare & Anr. v. State of Maharashtra, (2005) 10 SCC 404;
Anil Kumar v. State of UP (2004) 13 SCC 257 and Dharam
v. State of Haryana 2006 (13) SCALE 280 - relied on.
6.1 Shyam Singh has assaulted Bhom Singh as also
Jaswant Singh with dhariya. This has been proved by
F
Jaswant Singh, Shivnath Singh and Hakam Singh. He had
also given a dhariya blow on Prem Singh. He is, therefore, convicted under Section 324 and sentenced to undergo three years' rigours imprisonment and a fine of
Rs.1,000/- in default to undergo a sentence of three . G
months. Laxman Singh was also carrying dhariya and hit
..,
Jaswant Singh, Ram Pratap Singh and Bhupendra Singh,
as stated by Jaswant Singh, Shivnath Singh, Ram Pratap ·
Singh and Bhupendra Singh (PW-21 ). Karan Singh had
caused injury upon Jaswant Singh by a lathi. He is, thereH
8
SUPREME COURT REPORTS
[2008] 9 S.C.R.
...
A
for~, convicted under Section 323 IPC. Mangu (A-10) is
'f
acquitted of all charges. Kripal Singh (A-12) who had hit
Jaswant Singh by a dhariya as also Prem Singh, is convicted under Section 324 IPC. Bhim Singh (A-13) and
Narwar Singh (A-14) caused injuries upon Jaswant Singh
B by lathis. [Para 53] (39-0-F]
6.2 On a broad conspectus of the event, Kripal Singli'
~
(A-16), Bhupinder Singh @Bhopal Singh (A-17) and Kuber
Singh must be held to be guilty of Section 304 Part I of the
c
Indian Penal Code. [Para 55] [42-0-E]
6.3 If the voluntary causing of death is not permissible under the right of private defence under Section 96,
then the common intention thereto will lead to the result
that the accused persons must be held guilty under SecD tion 304 Part I of the Indian Penal Code. If, however, the
common intention was only to commit an act which was
permissible within the confines of Section 96 read with
Section 98, then constructive liability under Section 34 cannot be said to have been accrued to the accused. In that
E case then, if the right of private defence had been exceeded
by some persons, the guilt of each of the accused proved
to have exceeded the right of private defence would have
to be dealt with separately. [Para 56] [42-E-HJ
6.4 The instant case, however, falls under the former
F situation, and hence Kripal Singh (A-16), Bhupinder Singh
@ Bhopal Singh (A-17) and Kuber Singh are held guilty
under Section 304 Part I of the Indian Penal Code. They
are, therefore, held to have found a common object for
causing death of Prem Singh. They are sentenced to unG dergo 10 years' rigorous imprisonment each. [Paras 56,
57) (42-G-H; 43-A-B]
j.
6.5 Till the tractor carrying ~uber Singh, Kripal Singh
,.,.
son of Manohar Singh and Bhupendra Singh arrived at
the scene, the intention of the accused were to hurl
H abuses and cause simple injuries but the fact that they
BHANWAR SINGH & ORS. v. STATE OF
9
M.P.
were aggressors and they initiated the process is beyond A
any doubt. It cannot be said that participation of
Bhupendra Singh has not been pr_oved in view of the statement made by Hakam Singh (PW-17). Bhupendra Singh
took a leading role. He was named in the First lnformation Report which was recorded immediately. According 8
to Jaswant Singh (PW-12), Shiv Nath Singh (PW-13), Ram
\--
Pratap Singh (PW-18) and Bhupinder Singh (PW-21 ), he
not only was having a 12 bore double barrel gun but he
had also fired a shot on Prem Singh. He was also seen
with a gun by Rajendra Singh (PW-20). [Para 58] [43-B-D] c
Joginder Ahir v. State of Bihar AIR 1971 SC 1834; State
of Bihar v. Nathu Pandey AIR 1970 SC 27 and Gurditta Mal &
Ors. v. State of Uttar Pradesh AIR 1965 SC 257 - relied on.
7 .1 When implicit reliance is placed on eye-witnesses, D
)..
some embellishment in the prosecution case caused by
reason of evidence of any of prosecution witness although
not declared hostile by itself cannot be a ground to discard the entire prosecution case. Each case must be
judged on its own facts. For appreciation of evidence, E
there cannot be any hard and fast rule. [Para 59] [43-E-F]
Dharmendrasingh @ Mansing Ratansing v. State of
Gujarat (2002) 4 SCC 679 - referred to.
--1
7.2 This Court is in a position to rely solely upon the
F
statement of Hakam Singh (PW-17) in this behalf. Similarly, participation of Kripal Singh and Kuber Singh is also
beyond any doubt. He came in the tractor having a gun.
Kuber also came with a gun and fire a s_hot at Bhom Singh,
Meharban Singh (PW-22) and Babu Lal (PW-23). The statement made in the First Information Report has been supG
ported by Shiv Nath Singh (PW-13), Hakam Singh (PW-
...;
17), Ram Pratap Singh (PW-18), Bhupinder Singh (PW-21)
as also Bharat Singh (PW-24). Thus, Rattan Lal (A-5),
Umrao Singh (A-7), Nanuram (A-8) Karan Singh (A-9),
Mangu Singh (A-10), Umendra Singh (A-11), Bhom Singh H
10
SUPREME COURT REPORTS
[200BJ 9 s.c;.R.
A (A-13) Narwar Singh (A-14) and Mangu Singh (A-15) although did not have take part in causing death of deceased, however, indisputably, were present and participated in abuse and scuffles. They, apart from being guilty
under Section 323/149 of the Indian Penal Code are also
B guilty of individual act on their part. {Paras 60, 61] {44-C-F]
7.3 This Court does not agree with the judgment of
the Trial Court that throwing of stone on Jaswant Singh
should not be believed. It is also difficult to accept that at
the second stage, it was Bhom Singh (PW-19) who had
c inflicted injury to Kuber Singh. A statement in this behalf
has been made by Ram Pratap Singh (PW-18). There are
also the consistent statements made by other eye-witnesses some of whom are injured. One statement by one
of the witnesses may not be taken out of context to abD jure the guilt on the part of all accused persons. {Para 61]
{44-G-H; 45-A]
7.4 Kripal Singh son of Kalyan Singh (A-12), Shyam
Singh son of Kalyan Singh (A-1) and Laxman Singh son
E of Chand Singh are accused who have inflicted dharia
injuries on Jaswant. Apart from being guilty under Section 323/149 of the Indian Penal Code are also guilty of
causing grievous injury. They are sentenced to undergo
rigorous imprisonment for seven years as also a fine of
F
Rs.1,000/- in default to undergo simple imprisonment for
three months. All the other accused, except Bhanwar Singh
are also sentenced to undergo rigorous imprisonment for
three years under Section 323/149 of the Indian Penal Code
and a fine of Rs.1,000/- in default to undergo rigorous imprisonment for three months. [Para 62] [45-B-D]
G
7.5 Bhanwar Singh, a tractor driver, and having not
committed any overt act, cannot be held to be guilty of
';..
any offence. He is set at liberty and directed to be released
forthwith unless wanted in connection with any other
H case. [Paras 63, 64] [45-E-F]
BHANWAR SINGH & ORS. v. STATE OF
11
M.P. [S.B. SINHA, J]
"
A
CRIMINALAPPELLATEJURISOICTION: CriminalAppeal
No. 300 of 2007
From the Judgment and Order dated 16.1.2006 of the High
Court of Madhya Pradesh, Bench at Indore in Crl. Appeal No.
B
.\-
342/1990
WITH
Crl. A. Nos. 301 and 302 of 2007
Sushil Kumar Jain, H.D. Thanvi, Puneet Jain, Christi Jain, c
Piyush Jain, Sarad Singhania and Pratibha Jain for the Appellants.
Vibha Datta Makhija for the Respondents.
)..
The Judgment of the Court was delivered by
0
S.B. SINHA, J : 1. Appellants in these appeals along with
one Manohar Singh (A-2- since deceased), Nanuram (A-8 -
since deceased) and Umrao Singh (A-7- since deceased) were
tried and held guilty for commission of offences punishable unE
der Sections 302/149, 147, 148 and 307/149 of the Indian Penal Code (IPC). They were sentenced to undergo imprisonment
for life for commission of the offence under Section 302/149
IPC; three months' rigorous imprisonment for the offence under
Section 147 IPC and a fine of Rs.100/- each.
F
2.Accused persons, namely, Shyam Singh (A-1), Manohar
Singh (A-2), Laxman Singh (A-3), Mohan Singh (A-4), Rattan
Lal (A-5), Kripal Singh (A-16), Bhupendra Singh (A-17) and
Kuber Singh (A-18) were found guilty also under Section 148
IPC and sentenced to undergo rigorous imprisonment for three G
months and fine of Rs.100/- each .
...,
3. The prosecution case is as under :
Relationship between the accused persons and the complainant party was strained on account of Panchayat election
H
12
SUPREME COURT REPORTS
[2008] 9 S.C.R.
A wherein Bhupendra Singh (A-16) was elected defeating Vikram
Singh (PW-16).
The incident occurred at about 02.30 p.m. on 25.10.1984
in a village known as Kantharia within the jurisdiction of Jharda
Police Station. It was alleged that when Shivnath Singh (PWB 13) was sitting in his house along with Ram Pratap Singh (PW18), Prem Singh (deceased) and Shorn Singh (PW-19), accused persons Mohan Singh, Manohar Singh, Kripal Singh (A12), Laxman Singh and Karan Singh (A-9) were also sitting
nearby, abuses were exchanged between both the parties.
C Jaswant Singh (PW-12) asked members of both the parties
not to hurl abuses to each other. Kripal Singh (A-16), Bhupendra
Singh@ Bhopal Singh (A-17) and Kuber Singh armed with 12
bore guns at that time came from the old village of Kanthariya
on a tractor. The said tractor was driven by Bhanwar Singh (AD 6). Laxman Singh is said to have been armed with dhariya,
Manohar Singh was having spear and stone and other accused
were said to have been armed with lathis. When Jaswant Singh
asked the accused persons not to quarrel, Manohar Singh
pelted stone causing injury on his head, whereupon he fell down
E on the ground. Thereafter, Shyam Singh and Kripal Singh (A12) caused injuries to him by a dhariya. Other accused persons
are also said to have assaulted by lathis. Bhupendra Singh (A17) is said to have fired a gun shot to the chest of Prem Singh
and Kripal Singh (A-16) as well as Kuber Singh are also said to
F have fired shots at Bhom Singh, Meharban Singh (PW-22) and
Babu Lal (PW-23). During the incident Hakam Singh (PW-17),
Ram Pratap Singh, Rajendra Singh (PW-20), Bhupendra Singh
(PW-21), Meharban Singh and Bharat Singh (PW-24) are said
to have suffered injuries.
G
Shivnath Singh, who examined himself as PW-13, lodged
the First Information Report in relation to the said incident at
about 05.45 p.m. on the same day.
4. It is not in dispute that a counter case was also filed by
the accused persons on the same day, which was registered
H
BHANWAR SINGH & ORS. v. STATE OF
13
M.P. [S.B. SINHA, J]
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as Crime No. 129/84 on account of the injuries suffered by acA
cused persons, namely, Manohar Singh, Laxman Singh and
Mohan Singh.
5. Before the learned Sessions Judge, as many as 27
witnesses were examined on behalf of the prosecution.
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6. The post-mortem examination on the body of the de-
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ceased Prem Singh was conducted by Dr. Murlidhar Varun (PW2). He also examined the other injured witnesses. Another doctor, viz. Or. Sunil Jamindar (PW-1), a Radiologist, also examined some injured witnesses.
c
7. Jaswant Singh is an injured eye-witness. Other injured
witnesses are Hakam Singh, Ram Pratap Singh, Shorn Singh,
Rajendra Singh and Bharat Singh. Three prosecution witnesses,
namely, Babu Khan (PW-11 ), Meharban Singh (PW-22) and
Babu Lal (PW-23) were declared hostile. As Kripal Singh (A0
).
16), Bhupendra Singh (A-17) and Kuber Singh (A-18) were
shown as absconders, their cases were separated and the trial
proceeded against rest of the 15 accused persons. During the
trial, however, they were arrested, whereafter it continued. The
prosecution witnesses were recalled for cross-examination on
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behalf of the aforementioned accused persons witnesses who
had been absconding and were arrested subsequently.
8. The learned Sessions Judge while holding the accused
persons guilty of commission of the aforementioned offences,
...,
inter alia, opined :
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•
(i)
There had been a free fight between the parties.
(ii)
The prosecution had not disclosed the entire genesis
of the occurrence.
(iii) Injuries on the person of three accused had not been G
explained by the prosecution .
.../
(iv)
All the witnesses of the prosecution side attempted
to conceal the injuries caused to Mohan Singh,
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14
SUPREME COURT REPORTS
[2008] 9 S.C.R.
A
Manohar Singh and Laxman Singh.
y
9. The High Court, however, by reason of the impugned
judgment held :
(i)
There was no free fight between the parties.
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(ii)
The plea of self-defence was not available to the
appellants.
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(iii) Appellants were aggressors as they came heavily
armed to the house of complainant Jaswant Sigh
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and started the assault.
(iv)
Injuries to the three accused were caused in the right
of private defence of the complainant party.
(v) Accused Nos. 16, 17 and 18, who were arrested
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later on, were not prejudiced by non-examination of
the witnesses in their presence having regard to the
,;.,
provision of Section 465 of the Code of Criminal
Procedure.
10. Appellants are, thus, before us.
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11. Mr. Sushil Kumar Jain, learned counsel appearing on
behalf of the appellants, in support of the appeals, inter alia,
submitted:
(i)
Names of the six accused persons having not been
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mentioned in the First Information Report, although
).
the par1'es are residents of the same village, the
prosecution story should not have been believed.
(ii)
No evidence was brought on record to show that the
accused persons had assembled unlawfully for the
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purpose of commission of offence and as such
conviction under Sections 147, 148 and 149 were
..
not maintainable.
'\po
(iii) All the accused persons admittedly having not come
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together and specific overt-acts having been
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BHANWAR SINGH & ORS. v. STATE OF
15
M.P. [S.S. SINHA, J]
v
attributed only against some of the accused persons,
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those who did not take part in the commission of the
offence could not have been convicted with the aid
of Section 149 IPC.
(iv)
Appellants being not the aggressors and as three of
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them suffered injuries during the free fight, in exercise
of their right to self-defence, had a right to cause
injuries on the prosecution witnesses.
(v)
Although, the gun allegedly possessed by Bhupendra
Singh (A-17) was snatched by PW-13, the same c
having not been examined by any ballistic expert,
commission of the offence cannot be said to have
been proved.
(vi)
Participation of the accused by firing a shot from his
J.
gun upon Prem Singh cannot be said to have been D
...
established, as the gun snatched from Bhupendra
Singh (A-17) was found to be only a toy gun.
(vii) The learned Session Judge as also the High Court
did not take into consideration the plea of Bhupendra
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Singh (A-17) that he was not present at the time of
occurrence.
(viii) From a perusal of the statements made by PW-17,
PW-18 and PW-19, it would appear that they were
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not the witnesses to the entire occurrence and as
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such the learned Sessions Judge as also the High
Court committed a serious error in arriving at the
findings of guilt against the appellant.
12. Ms. Vibha Dutta Makhija, learned counsel appearing
on behalf of the State, on the other hand, submitted :
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(i)
Genesis of the incident and injuries on the person of
the accused persons had been explained by the
witnesses and in particular by PW-17 and PW-19.
(ii)
The parties had formed a common object at the spot H
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SUPREME COURT REPORTS
[2008] 9 S.C.R.
A
to commit the aforementioned offence and as their
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intention in that behalf being clear, the conviction
under Section 149 IPC is sustainable in law.
(iii) In any event, seven accused persons by committing
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overt-acts had exhibited their respective meeting of
mind.
(iv) A holistic view has to be taken in the matter as
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evidences of the prosecution witnesses should be
considered in their entirety as some of the witness
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had only seen a part of the occurrence.
(v)
The proser:ution had also examined witnesses who
had proved :he conduct of the parties during or after
the occurrence.
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(vi)
In view of the provisions contained in Sections 97,
...
100 and 101 of the IPC, the plea of self-defence was
not available to the appellants.
(vii) Appellants are the aggressors as Jaswant Singh was
assaulted whereupon only a protest was made.
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(viii) The prosecution witnesses being wholly unarmed,
there was absolutely no reason for the accused
persons to cause the death of Prem Singh and
injuries to as many as 17 persons.
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13. Altogether 18 persons were proceeded against. Out
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of them 15 are before us. Three of the accused persons, namely,
Manohar Singh, Umrao Singh and Nanuram have expired.
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14. The principal allegations are against Kripal Singh (A1s
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16), Bhupender Singh (A-17) a.nd Kuber Singh (A-18). They are
said to have caused the death of Prem Singh by aiming gun
shot injuries on him and other prosecution witnesses. They are
ice-;
appellants in Criminal Appeal No. 301 of 2007. Shyam Singh,
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Laxman Singh, Mohan Singh, Rattan Lal, Umender Singh and
Kripal Singh (A-12) are alleged to have committed various overt
H acts causing injuries to a large number of prosecution wit-
BHANWAR SINGH & ORS. v. STATE OF
17
M.P. [S.B. SINHA, J]
nesses. They are appellants in Criminal Appeal No. 302 of A
2007. So far as the appellants of Criminal Appeal No. 300 of
2008, namely, Bhawar Singh, Karan Singh, Mangu (A-15), Shim
Singh, Narwar Singh and Mangu Singh (A-10) are concerned,
no overt act had been attributed to them.
15. All the appellants in this appeal, however, have been
8
convicted by the learned Trial Judge under Section 302/149
IPC and sentenced to undergo rigorous Imprisonment for life,
under Section 148 IPC and sentenced to undergo three months'
rigorous imprisonment and a fine of Rs.100/- each as also under Section 147 IPC and sentenced to undergo three months' C
rigorous imprisonment with a fine of Rs.100/- each.
16. The prosecution in support of its case examined 27
witnesses. Three of the witnesses, namely, Babu Khan;
Meharban Singh and Babu Lal have been declared hostile. · D
Jaswant Singh, Ram Pratap Singh, Bhom Singh, Rajendra
Singh and Bharat Singh are injured witnesses. Shivnath Singh
is the first informant. He also sustained injuries. Apart from the
aforementioned injured witnesses, Hakam Singh, who is the ·
brother of the deceased is said to be an eye-witness. Vikram
Singh (PW-16) reached the place of occurrence immediately E
after the incident. Bhupendra Singh (PW-21) is also said to be
an eye-witness. Other important witnesses who have been examined by the prosecution are Dr. Sunil Jamindar, Radiologist
(PW-1) and Dr. Murlidhar Va run, Assistant Surgeon (PW-2), who
performed the autopsy on person of the deceased. Some witF
nesses have also been examined by the prosecution, who are
witnesses to recovery, namely, Radha Charan Singh (PW-5) is
panch witness to recovery of Ex.P-36, Swaymbar Lal (PW-6), a
witness to recovery of Ex. P-37, Kalu Singh (PW-7), Abdul Karim
(PW-8) witness to recovery of tractor, Jiwan Singh (PW-9) witG
ness to the recovery of clothes (Ex.P-49) and Dayaram (PW-
' 10) witness to recovery of letter Ex. P-51, Gabbu Khan (PW14) witness to recovery of gun from Shivnath Singh, Sewa Ram
(PW-15) witness to recovery of 'Farsi' and Sardar Singh (PW25) witness to the recovery of empty cartridges. The investigaH
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SUPREME COURT REPORTS
[2008] 9 S.C.R.
A tion had been carried out by Satish Kumar Mehra (PW-26) and
Bhanu Pratap Singh Bhadoriya (PW-27).
17. Before we proceed to analyse the deposition of the
witnesses, we may also notice that the injuries are said to have
been suffered by Prem Singh (deceased) as also the prosecuB tion witnesses Jaswant Singh, Ram Pratap Singh, Shorn Singh,
Rajendra Singh and Bharat Singh. Three of the accused persons are also said to have suffered some injuries viz. Manohar
Singh, Mohan Singh and Laxman Singh.
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18. The fact that there are two groups in the village, one
belonging to Bhupendra Singh and the other Jaswant Singh is
not in dispute. Shupendra Singh (A-17) contested the Panchayat
elections against Vikram Singh, wherein the latter lost.
19. Allegedly, owing to political and group rivalry, the comD plainant party drove their cattle inside the field of Laxman Singh.
A First Information Report was lodged by him 8 or 9 days prior
to the day of incident against Chhotey Singh and Vikram Singh
for causing damage to his crops. Laxman Singh also lodged
first information report against Bhom Singh and Kalu Singh for
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having been assaulted by them.
20. In the First Information Report, it was alleged that on
25.10.1984 at about 2.30 p.m. at village new Kanthariya persons from both the parties had assembled. There was exchange
of abuses. Jaswant Singh had requested Ram P,ratap Singh,
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Prem Singh and Shorn Singh and accused persons, namely,
Mohan Singh, Manohar Singh, Kripal Singh (A-12), Laxman
Singh and Karan Singh, not to hurl abuses to each other. He
intended to pacify them. Kripal Singh (A-16), Bhupendra Singh
@ Bhopal Singh and Kuber Singh armed with 12 bore guns ·
G came on a tractor, which was being driven by Bhanwar Singh. It
is not in dispute that Laxman Singh was armed with Dhariya,
whereas Manohar Singh was armed with spear and stone and
the other accused persons were armed with lathis. As soon as
Jaswant Singh asked them not to quarrel, a stone was pelted at
H him by Manohar Singh, which caused an injury on his head. He
BHANWAR SINGH & ORS. v. STATE OF
19
M.P. [S.S. SINHA, J]
fell down on the ground. Thereafter, accused Shyam Singh and A
Kripal Singh (A-12) caused injuries to him by dhariya.
Bhupendra Singh (A-17) fired a shot at the chest of Prem Singh
(deceased). Kripal Singh (A-16) and Kuber Singh had also shot
fires at Bhom Singh, Meharban Singh and Babu Lal. Other prosecution witnesses, as noticed hereinbefore, were also injured.
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The First Information Report was lodged at about 05.45 p.m.
21. Learned Trial Judge, in his judgment purported to have
held:
(i)
He, on the one hand, held that injuries on Jaswant c
Singh by reason of throwing of the stone by accused
Manohar Singh had not been proved beyond
reasonable doubt, although Jaswant Singh clearly
stated so.
}.
(ii)
Shorn Singh stated that as soon as his father Jaswant D
Singh arrived, both the parties started quarrelling
with each other.
(iii) It has not been proved beyond doubt that the accused
persons were the aggressors in ensuring the quarrel,
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or the complainant side was the aggressor.
(iv)
In regard to the genesis of the occurrence, the
learned trial Judge opined that how the quarrel began
has not been proved.
(v)
According to him, a question arose as to whether
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the so-called quarrel was started. by the accused
persons in their self-defence.
(vi)
In regard to the injuries suffered by the accused
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persons, it was opined that some witnesses tried to G
..
conceal the injuries suffered by them .
...
(vii) He had also sought to arrive at an inference that
there was an open and free fight between the parties .
..
. (viii) While passing a judgment of acquittal against Shyam
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SUPREME COURT REPORTS
[2008) 9 S. C.R. ·
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Singh, Manohar Singh, Laxman Singh, Mohan Singh,
Rattan Lal, Kripal Singh (A-12), Kripal Singh (A-16)
and Bhupendra Singh (A-17) for commission of an
offence under Section 307/149 IPC, he, however,
convicte~ all the 18 accused persons for commission
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of offences, as noticed hereinbef9J:e, including the
offence punishable under Section 302/149 IPC.
....,.
22. It is, however, worth-noticing that the High Court in its
impugned judgment did not accept some of the aforementioned
findings of the learned Trial Judge. It relied on the evidence of
c Jaswant Singh. He had categorically stated that a stone was
thrown by Manohar Singh on him which struck on his head and
thereafter accused Kripal Singh (A-12) and Shyam Singh assaulted him by dhariya. The High Court noticed that the only
apparent contradiction in his evidence was that according to
~
D him after receiving injuries he had become unconscious,
whereas in his statement before the Investigating Officer (Ex.
D-5), he had named Urned Singh, Narwar Singh, Bhim Singh
and Karan Singh who had caused injuries on him by lathis.
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23. The High Court also took into consideration the fact
that Jaswant Singh had suffered a fracture on his parietal bone
as also three o.ther fractures on different parts of his body, which
in the opinion of Dr. Murlidhar was caused by the hard and blunt
substance. The testimony of Shivnath Singh, who is the first informant, as regardss the manner of occurrence as also the roles
).-
F played by the accused persons have been taken into consideration. The High fourt, however, noticed that the gun purported
to have been snatched by him from the accused Bhupendra
Singh had not been sent to the ballistic expert. It was also noticed the omission on the part of the first informant who had not
G mentioned in.the First Information Report that accused Kripal
,.
Singh (A-12) had caused injuries on the head of the deceased
.,i!!
Prem Singh by dhariya, as a result of his forgetfulness, but the
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same was not material.
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24. Vikram Singh is a witness who had come to the scene
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BHANWAR SINGH & ORS. v. STATE OF
21
M.P. [S.B. SINHA, J]
of occurrence, a little later. From his evidence, however, it is
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clear that Shivnath Singh was present at the spot and he had
taken the deceased Prem Singh and other victims to the police
station.
25. We may notice the deposition of Hakam Singh, in view
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of the submissions made by Mr. Jain, in some details. Accord-
~
ing to the said witness, when he was sitting with his elder brother
deceased Prem Singh, Shivnath Singh, Ram Pratap Singh,
Bhom Singh son of Shambho6 Singh near the house of Shivnath
Singh, accused Mohan Singh, Manohar Singh, Kripal Singh (A12) started hurling abuses. Jaswant Singh tried to intervene, c
whereupon a stone was thrown by accused Manohar Singh,
which hit his head. The tractor carrying Kuber Singh and Kripal
Singh (A-16) came at the place of occurrence at that point of
time. Admittedly, they were armed with guns. Hakam Singh in
· his evidence accepted that on abuses being hurled by the acD
).
cused persons, .Shivnath Singh had also hurled abuses. They
thereafter reached the corner of the house of Mod Singh, where
Manohar Singh had hit Jaswant Singh. Parties had entered into
a scuffle with each other, whereafter only the tractor carrying
Kuber Singh, Kripal Singh (A-16) and Bhanwar Singh reached.
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According to him, abuses continued to be exchanged between
both the parties for about 4-5 minutes. He also accepted that
Shivnath Singh was armed with a lathi and Ram Pratap Singh
was having a dhariya, Bhom Singh son of Shambhoo Singh
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was armed with a lathi, Prem Singh was also having a lathi with
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him. In his examination-in-chief, he stated that Bhom Singh had
hit Kuber Singh with a sword, at that time Kuber Singh had come
down from the tractor and he had withstood the attack with the
sword on the barrel of his gun.
26. At this stage, we may also notice the statement of Bhom G
Singh, who examined.himself as PW-19. According to this wit-
""(
ness when both the sides had been hurling abuses against each
other, Jaswant Singh, knowing both the parties, went to make
them see reason, and at that point of time, he was attacked. He
also rushed there. He was hit by a gun shot injury. He became
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SUPREME COURT REPORTS
[2008] 9 S.C.R.
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unconscious. According to him he had also been assaulted by
dhariya on his face below the eye. This witness also accepted
that ShivnathSingh and Ram Pratap Singh were holding lath is.
27. It is, however, not in dispute that Jaswant Singh, father
of the witness, was empty handed. Both the learned Trial Judge
S also the High Court placed implicit reliance on his evidence.
28.