# KARTAR SINGH v. STATE OF PUNJAB

- **Citation:** [1962] 2 S.C.R. 395
- **Court:** Supreme Court of India
- **Decided:** 1959-01-05
- **Case number:** Criminal Appeal No. 146 of 1959
- **Bench:** K. SuBBA RAO, Raghubar Dayal, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kartar-singh-v-state-of-punjab-2261
- **Pages:** 7

## Headnote

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 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 (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 unlawful 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 respondent.
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 appellant'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 happened to be sitting on a well, challenged them and
Nand Lal remarked

## Text

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 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 (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 unlawful 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 respondent.
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 appellant'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 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.
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 selfdcfonce.
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 :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 determinaLion 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 received 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 ].
398
SUPREME COURT REPORTS
[1962]
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 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 wcllbased 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
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 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 Sinqh v. State of Punjab (1) of this
Court:
"Now mistaken identity has never been suggested. 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 prosecution 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 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 r959, decided on December 15, 1960.
2 S.C.R. SUPREME COURT REPORTS
401
had two incised wounds and one punctured wound
'961
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 accordingly 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 Legislative Assembly in a bye-election from the Dhanbad constituency 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 inasmuch 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 special leave,
Held, that in view of the mistake that occurred in the
April z6.