Bhanwar Singh & Ors vs State Of M.P

Bhanwar Singh & Ors. ...Appellants

Versus

State of M.P. ...Respondent

WITH

CRIMINAL APPEAL NOS. 301 & 302 OF 2007

JUDGMENT

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 under Sections 302/149, 147, 148 and 307/149 of the Indian

Penal Code (IPC). They were sentenced to undergo imprisonment for 2

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.

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 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 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 (PW-13) was sitting in

his house along with Ram Pratap Singh (PW-18), Prem Singh (deceased)

and Bhom Singh (PW-19), accused persons Mohan Singh, Manohar

Singh, Kripal Singh (A-12), Laxman Singh and Karan Singh (A-9) were 3

also sitting nearby, abuses were exchanged between both the parties.

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 (A-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 on the ground.

Thereafter, Shyam Singh and Kripal Singh (A-12) caused injuries to him

by a dhariya. Other accused persons are also said to have assaulted by

lathis. Bhupendra Singh (A-17) 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 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.

4 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 as Crime No. 129/84 on

account of the injuries suffered by accused 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.

6. The post-mortem examination on the body of the deceased Prem

Singh was conducted by Dr. Murlidhar Varun (PW-2). He also examined

the other injured witnesses. Another doctor, viz. Dr. Sunil Jamindar

(PW-1), a Radiologist, also examined some injured witnesses.

7. Jaswant Singh is an injured eye-witness. Other injured witnesses

are Hakam Singh, Ram Pratap Singh, Bhom 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 (A-16), Bhupendra Singh (A-17) and Kuber 5

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 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 :

(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 explained

by the prosecution.

(iv) All the witnesses of the prosecution side attempted to conceal

the injuries caused to Mohan Singh, Manohar Singh and

Laxman Singh.

9. The High Court, however, by reason of the impugned judgment

held :

6

(i) There was no free fight between the parties.

(ii) The plea of self-defence was not available to the appellants.

(iii) Appellants were aggressors as they came heavily armed to the

house of complainant Jaswant Sigh 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 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.

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 mentioned in

the First Information Report, although the parties are residents of

the same village, the prosecution story should not have been

believed.

7 (ii) No evidence was brought on record to show that the accused

persons had assembled unlawfully for the purpose of commission

of offence and as such conviction under Sections 147, 148 and 149

were not maintainable.

(iii) All the accused persons admittedly having not come together and

specific overt-acts having been attributed only against some of the

accused persons, 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 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 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 gun upon

Prem Singh cannot be said to have been established, as the gun

snatched from Bhupendra Singh (A-17) was found to be only a toy

gun.

8

(vii) The learned Session Judge as also the High Court did not take into

consideration the plea of Bhupendra 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 not the witnesses to the entire

occurrence and as 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 :

(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 to commit the

aforementioned offence and as their 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 overt-acts had

exhibited their respective meeting of mind.

9 (iv) A holistic view has to be taken in the matter as evidences of the

prosecution witnesses should be considered in their entirety as

some of the witness had only seen a part of the occurrence.

(v) The prosecution had also examined witnesses who had proved the

conduct of the parties during or after the occurrence.

(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.

(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.

13. Altogether 18 persons were proceeded against. Out of them 15 are

before us. Three of the accused persons, namely, Manohar Singh, Umrao

Singh and Nanuram have expired.

14. The principal allegations are against Kripal Singh (A-16),

Bhupender Singh (A-17) and 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 appellants in Criminal Appeal No. 10

301 of 2007. Shyam Singh, Laxman Singh, Mohan Singh, Rattan Lal,

Umender Singh and Kripal Singh (A-12) are alleged to have committed

various overt acts causing injuries to a large number of prosecution

witnesses. They are appellants in Criminal Appeal No. 302 of 2007. So

far as the appellants of Criminal Appeal No. 300 of 2008, namely,

Bhawar Singh, Karan Singh, Mangu (A-15), Bhim 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 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' 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. 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 11

the deceased is said to be an eye-witness. Vikram Singh (PW-16)

reached the place of occurrence immediately 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 Varun, Assistant

Surgeon (PW-2), who performed the autopsy on person of the deceased.

Some witnesses 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) witness to the recovery of

clothes (Ex.P-49) and Dayaram (PW-10) witness to recovery of letter Ex.

P-51, Gabbu Khan (PW-14) witness to recovery of gun from Shivnath

Singh, Sewa Ram (PW-15) witness to recovery of `Farsi' and Sardar

Singh (PW-25) witness to the recovery of empty cartridges. The

investigation 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 prosecution witnesses Jaswant Singh, Ram 12

Pratap Singh, Bhom 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.

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.

Bhupendra Singh (A-17) contested the Panchayat elections against

Vikram Singh, wherein the latter lost.

19. Allegedly, owing to political and group rivalry, the complainant

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 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 Pratap Singh, Prem Singh and Bhom 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 @ 13

Bhopal Singh and Kuber Singh armed with 12 bore guns 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 him by Manohar Singh, which caused an injury on

his head. He fell down on the ground. Thereafter, accused Shyam Singh

and 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. 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 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) Bhom Singh stated that as soon as his father Jaswant Singh

arrived, both the parties started quarrelling with each other.

14 (iii) It has not been proved beyond doubt that the accused persons were

the aggressors in ensuring the quarrel, 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 the so-called

quarrel was started by the accused persons in their self-defence.

(vi) In regard to the injuries suffered by the accused persons, it was

opined that some witnesses tried to 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 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, convicted all the 18 accused persons for commission of

offences, as noticed hereinbefore, including the offence punishable

under Section 302/149 IPC.

15 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 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 him

after receiving injuries he had become unconscious, whereas in his

statement before the Investigating Officer (Ex. D-5), he had named

Umed Singh, Narwar Singh, Bhim Singh and Karan Singh who had

caused injuries on him by lathis.

23. The High Court also took into consideration the fact that Jaswant

Singh had suffered a fracture on his parietal bone as also three other

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 played by the accused persons have been

taken into consideration. The High Court, 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 16

omission on the part of the first informant who had not mentioned in the

First Information Report that accused Kripal Singh (A-12) had caused

injuries on the head of the deceased Prem Singh by dhariya, as a result of

his forgetfulness, but the same was not material.

24. Vikram Singh is a witness who had come to the scene of

occurrence, a little later. From his evidence, however, it is 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 of the

submissions made by Mr. Jain, in some details. According to the said

witness, when he was sitting with his elder brother deceased Prem Singh,

Shivnath Singh, Ram Pratap Singh, Bhom Singh son of Shambhoo Singh

near the house of Shivnath Singh, accused Mohan Singh, Manohar

Singh, Kripal Singh (A-12) started hurling abuses. Jaswant Singh tried

to intervene, 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 accused persons, Shivnath Singh had also

hurled abuses. They thereafter reached the corner of the house of Mod 17

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. 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 was armed with a lathi, Prem Singh was also having a

lathi with 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 Singh,

who examined himself as PW-19. According to this witness 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 unconscious. According to him he had also been

assaulted by dhariya on his face below the eye. This witness also

accepted that Shivnath Singh and Ram Pratap Singh were holding lathis. 18

27. It is, however, not in dispute that Jaswant Singh, father of the

witness, was empty handed. Both the learned Trial Judge also the High

Court placed implicit reliance on his evidence.

28. Submission of the learned counsel, however, is that PW-17 having

not been declared hostile, as from his evidence it would appear that both

the parties were exchanging abuses and there had been scuffle, it is

evident that the intention of the accused persons at that point of time

cannot be held to be more than abusing and causing simple injuries. We

may also now examine the plea of self-defence. It was urged that when

the tractor from the old Basti came Bhom Singh (PW-19) was not

present.

Submission of Mr. Jain is that the evidence of this witness further

shows that Bhom Singh was armed with a sword. He caused an injury

with sword on the ear of Kuber Singh which gave rise to the

apprehension in the mind of Kuber Singh that further serious injuries

might be caused on his person. The ear of Kuber Singh (A-18) was cut

with the sword of Bhom Singh. The accused persons, according to Mr.

Jain, could exercise their right of private defence, inasmuch the

complainant party was also armed.

19

29. Further submission of the learned counsel was that in view of the

statement of the said witness that except the persons named therein no

other member of other party had reached `Otle' would go to show that

Rattan Lal, Umrao Singh, Nanuram, Karan Singh, Mangu, Umendra

Singh, Bhom Singh (A-13), Narvar Singh, Mangu Singh and Bhupendra

Singh did not commit any overt act. So far as Shyam Singh, Manohar

Singh, Laxman Singh, Mohan Singh and Kripal Singh (A-12) are

concerned, they are said to have only participated in the first part of the

occurrence, namely, abuses and scuffle and they, therefore, can be held

guilty under Section 323/149 IPC particularly having regard to the fact

that the learned Trial Judge had disbelieved the factum of throwing stone

upon Jaswant Singh by Manohar Singh. It was submitted that the second

part of the occurrence clearly proves that a case of exercise of right of

private defence had been made out.

30. Rajendra Singh, Bhupinder Singh (PW-21) and Bharat Singh in

their respective depositions asserted that Bhupendra Singh, Kuber Singh

and Kripal Singh had been armed with guns and they fired from their

respective guns causing injuries upon Prem Singh. A suggestion made

by the defence to these witnesses that they had caused injuries to the 20

accused persons had not been denied. The suggestion to these witnesses

that there had been free fight between the parties was also denied.

31. The fact that the parties belonged to two different factions of the

village is not in dispute. The incident in question is also not in dispute.

32. Participation of the accused persons except Bhupendra Singh (A-

17) is also not in dispute. The fact that both the parties hurled abuses

against each other is again not of much dispute. We may, however,

notice that the prosecution witnesses were sitting; only a few of them

might have lathis in their hands which are usually carried by the

villagers. However, from the evidence brought on records, it is apparent

that it is the accused persons who had started abusing the other party.

Why they did so or whether they had any reason therefor is not a matter,

which would be decisive. There cannot be any doubt whatsoever that

Jaswant Singh as also Shivnath Singh, Vikram Singh, Bhom Singh (PW-

19), Rajendra Singh, Meharban Singh, Babu Lal, and Bharat Singh

asserted in their respective depositions that Jaswant Singh intended to

pacify them. Although Bhom Singh (PW-19) might have stated that

parties started quarrelling with each other after arrival of his father, but

the fact that his father Jaswant Singh tried to pacify both the groups

cannot be disbelieved. Both the courts have placed implicit reliance on 21

his evidence. There is no reason as to why we should take a different

view. The fact that he had received an injury on his forehead caused by

throwing of a stone is also not in dispute. Sufferance of multiple injuries

on his person cannot also be in dispute.

33. The scuffle between the parties started only thereafter.

34. In a case of this nature, the nature of the weapon possessed by the

accused persons assumes some significance. Except possession of lathis

by three prosecution witnesses, other prosecution witnesses did not have

any other weapon. In fact, one of the witnesses could snatch a gun from

the hands of Bhupendra Singh (A-17).

35. Jaswant Singh and Bhom Singh (father and son) do not appear to

be belonging to any group. 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 Singh (PW-19) caused an

injury to Kuber Singh. Kuber Singh could have exercised his right of

private defence; but he not only fired a shot at Bhom Singh (PW-19), he

fired shots which had hit Prem Singh and three shots 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.

22

36. Mohan Singh was armed with a gun. Apart from Mohar Singh,

other persons were also 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 (A-17), but all other

witnesses, namely, Jaswant Singh, Shivnath Singh, Ram Pratap Singh,

Rajendra Singh and Bhupendra Singh (PW-21) categorically stated that

he had also fired at Prem Singh. His name also was mentioned in the

First Information Report. Submission of Mr. Jain that there are

conflicting evidences as to who had caused the fatal injuries to Prem

Singh, as Shivnath Singh has assigned it to Bhupendra Singh (A-17),

Hakam Singh has assigned it to Kuber Singh, Bhom Singh (PW-19) has

assigned to Mohan Singh and Meharban Singh has assigned it to

Bhupendra Singh (A-17). It is not necessary to show that who had

caused fatal injury. All of them had fired at Prem Singh. Prem Singh

admittedly had suffered a large number of injuries. 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.

23

37. So far as the plea of free fight is concerned, we are of the opinion

that the High Court has rightly rejected the findings of the learned Trial

Judge. What would be a free fight has been considered by this Court in

Gajanand & Ors. V. State of Uttar Pradesh [AIR 1954 SC 695]. The

number of accused persons was 18; three of them came in a tractor with

guns. The theory of free fight, therefore, in our opinion, must be

excluded.

Reliance placed by Mr. Jain on the decisions of this Court in

Purari v. State of Rajasthan [(1976) 1 SCC 28] and Bachan Singh v. State

of Punjab [1993 (supp.(2) SCC 490], in our opinion, are not applicable.

Even assuming that there was a free fight, the same must have started

after Jaswant Singh's sustaining the injury.

38. The first issue to be resolved in this matter is to ascertain the point

at which the `common object' of the unlawful assembly in the instant

case was crystallized, and the nature of this common object, as this

would be necessary to rule on the applicability of Section 149 of the

Indian Penal Code (hereinafter `IPC').

39. Regarding the application of Section 149, the following

observations are extracted from the case of Charan Singh v. State of U.P.

[(2004) 4 SCC 205] :

24

"The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141... The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it [emphasis supplied]. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter... 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. [emphasis supplied] The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the 25

common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti."

Hence, the common object of the unlawful assembly in question

depends firstly on whether such object can be classified as one of those

described in Section 141 of the IPC. Secondly, such common object need

not be the product of prior concert but, as per established law, may form

on the spur of the moment {see also Sukha v. State of Rajasthan [AIR

1956 SC 513]}. Finally, the nature of this common object is a question of

fact to be determined by considering nature of arms, nature of the 26

assembly, behaviour of the members etc. {see also Rachamreddi Chenna

Reddy v. State of Andhra Pradesh [(1999) 3 SCC 97]}.

Applying this to the facts of the instant case, we may analyse the

materials on record :

i) It is not in dispute that among the accused present at the scene of

the occurrence prior to the arrival of the tractor [namely Mohan

Singh (A-4), Manohar Singh (A-2), Kirpal Singh (A-12), Laxman

Singh (A-3) and Karan Singh (A-9)], Laxman Singh (A-3) was

armed with a `dhariya', while Manohar Singh (A-2) was armed

with a spear and a stone.

ii) Kripal Singh (A-16), Bhupendra Singh (A-17) and Kuber Singh

(A-18), arrived at the scene of the crime armed with 12 bore guns

on a tractor driven by Bhanwar Singh (A-6).

iii) Apart from the specific weapons mentioned above, the other

accused were armed with `lathis'.

iv) Therefore, given the nature of the weapons, it is clear that all of the

accused were, at the very least, armed with weapons capable of

causing grievous hurt. The presence of weapons such as 12 bore 27

guns and spears leads to the inference that that the accused persons

were prepared to cause death.

v) Moreover, the arrival of three of the accused on a tractor with guns

shows that there was some sort of prior concert, at least among

those three accused, prior to arriving at the scene of the crime

regarding preparedness to cause death in the eventuality of an

armed assault. As described in Charan Singh v. State of U.P.,

(2004) 4 SCC 205, discussed above, the other accused may be said

to have adopted this common object through their overt acts.

vi) The incident was precipitated by the aggressive act of Manohar

Singh pelting Jaswant Singh, who was trying to pacify both

groups, with a stone.

vii) Following this, only when Jaswant Singh was injured and the

accused persons started assaulting him and some 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.

viii) Mohan Singh, Kripal Singh and Bhupendra Singh were also armed

with guns and, on appreciation of the evidence, all of them had 28

fired at Prem Singh, causing injuries to Prem Singh which were

likely to cause death.

ix) From the above, it is clear that the common object of the accused

in the instant case falls under Section 141, thirdly as the common

object of the unlawful assembly was to commit an `offence'. In the

instant case, the offences intended were against the human body.

x) Here, the unlawful assembly came together, heavily armed, with

the common object of causing at the very least grievous hurt to

their adversaries in 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 weapons like guns and

spears, even if it is held that the common object of the assembly

was not to cause death, it would not be an unreasonable inference

that all the accused 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.

29 xi) Therefore, any of the accused found to have participated in the

assault should be held guilty. Conviction under the aforesaid

provisions is not limited to those who fired guns, an instructive

judgment in this regard being that of Gurmukh Singh v. State of

Haryana [JT 1995 (8) SC 208 (Paras 11 and 12)].

40. 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, whereupon he became unconscious.

41. The evidences of the witnesses clearly establish as to how the

offence took place. It is evident that at least six persons, namely,

Bhupendra Singh together with Laxman Singh, Mohan Singh, Kripal

Singh (A-16), Kuber Singh and Kripal Singh (A-12) formed a common

object.

Having resolved the issue of common object, it is to be seen

whether such a common object can be reconciled with the existence of

any right to private defence.

42. Section 96 to 106 of the IPC deal with the right of private defence.

Some of the relevant statutory provisions are detailed hereafter. Section 30 96 of the IPC states that nothing is an offence which is done in the

exercise of the right of private defence. Section 97 IPC goes on to define

the right of private defence of the body and property. By virtue of

Section 97, First, every person has a right to defend his own body and

the body of any other person against any offence affecting the human

body, subject to the restrictions contained in Section 99 of the IPC.

Among the restrictions stated in Section 99, it is pertinent to note that the

provision stipulated the extent to which the right of private defence may

be exercised, namely that it in no case extends to the inflicting of more

harm than it is necessary to inflict for the purpose of defence. Further,

Section 100 details instances in which the right of private defence of the

body extends to causing death.

43. The plea of private defence has been brought up by the appellants.

For this plea to succeed in totality, it must be proved that there existed a

right to private defence in favour of the accused, and that this right

extended 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 not extend to causing death. Such a ruling may result in the 31

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 law and causes the death of the person against whom he is

exercising such right of defence without premeditation, and without any

intention of doing more harm than is necessary for the purpose of such

defence. The other situation is where, on appreciation of facts, the right

of private defence is held not to exist at all.

44. 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 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.

In this 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. The case of Sone Lal v. State of U.P., AIR

1981 SC 1379 is relevant in this regard, wherein it is stated that "[a]

ggressors, even if they receive injuries from the victims of their 32

aggression cannot have the right of private defence". More recently, a

similar ruling was delivered in Triloki Nath v. State of U.P., AIR 2006

SC 321 and Bishna @ Bhiswadeb Mahato v. State of West Bengal,

(2005) 12 SCC 657.

45. It would also be instructive to look at the following observations

made in Gurdatta Mal v. State of UP [AIR 1965 SC 257], in the context

of Sections 34 and 149 IPC:-

"It is well settled that Section 34 of the Indian Penal Code does not create a distinct offence: it only lays down the principle of joint criminal liability. The necessary conditions for the application of Section 34 of the Code are common intention to commit an offence and participation by all the accused in doing act or acts in furtherance of that common intention. If these two ingredients are established, all the accused would be liable for the said offence... In that situation Section 96 of the Code says that nothing is an offence which is done in the exercise of the right of private defence. Though all the accused were liable for committing the murder of a person by doing an act or acts in furtherance of the common intention, they would not be liable for the said act or acts done in furtherance of common intention, if they had the right of private defence to voluntarily cause death of that person. Common intention, therefore, has relevance only to the offence and not to the right of private defence. What would be an offence by reason of constructive liability would cease to be one if the act constituting the offence was done in exercise of the right of 33

private defence. To illustrate, if a person was guilty of murder by doing an act in furtherance of a common intention with others to commit murder, he could sustain the plea of the right of private defence only by establishing that he had the right to cause death of that person. It is true that, in ascertaining whether a group of persons had common intention to murder, the evidence adduced by the defence that they had common intention only to cause hurt is relevant. But once it is established that the common intention was to commit murder and/or culpable homicide the question of separate individual liability in the context of private defence would be out of place. Under Section 103 of the Indian Penal Code, the right of private defence of property extends, under the restrictions mentioned in Section 99 thereof, to the voluntary causing of death, if the offence, the committing of which or attempting to commit which occasions the exercise of the right falls in one of the categories mentioned therein. That is to say, if it was not one of the offences enumerated therein, the person had no right of private defence extending to the voluntary causing of death. If in the instant case the accused were not able to establish that the offence fell in one of the categories enumerated therein, they would be liable for murder, as all of them participated in the offence pursuant to the common intention to commit murder. In most of the cases, the discussion of the evidence in compartments - one relating to the offence and the other to the right of private defence - may not be possible, for almost always the evidence relating to one part will have impact on the other part, and the court in considering whether the accused are liable constructively for murder will have to consider also the evidence of the defence that their 34

common intention was not to commit murder but only to protect their right and to cause hurt, if necessary."

46. By extension, the above rationale may be applied while trying to

reconcile the right to private defence with Section 149 IPC and the

common object required thereunder. Section 149 also postulates a

principle of constructive liability, attaching liability to members of an

unlawful assembly where an offence is committed by a member of an

unlawful assembly in prosecution of the common object of such unlawful

assembly, or where members of such assembly knew that such offence

was likely to be committed in prosecution of that object. However, this

provision would quite clearly not apply if the act constituting the offence

was done in exercise of the right to private defence. As stated in the

aforementioned extract - "What would be an offence by reason of

constructive liability would cease to be one if the act constituting the

offence was done in exercise of the right of private defence". Moreover,

by similar extension of the above judgment, having established the

common object, entering into separate individual liability based on

private defence would be out of place. Hence, the task of the court would

be to ascertain whether, on one hand, there would be constructive

liability for culpable homicide or murder on the basis that this was 35

committed in prosecution of the common object of the assembly or was

known to be a likelihood in prosecuting such common object, or whether

this shared objective of the said group of persons was merely to protect

body or property (even if the finding is that such right has been

exceeded). The logical deduction from the above line of logic would be

that a finding regarding the former would necessarily preclude the

existence of the latter situation. In other words, if the object of an

assembly is to exercise the right to private defence, and if the alleged

offence has been committed in exercise or in excess of such right, it

would mean that the `common object' element of Section 149 would be

absent. Similarly, a finding that there exists a common object as

described under Section 141, and that an offence was committed in

pursuance of such object or was known to be likely to be committed in

pursuance of such object, would mean that `private defence' cannot be

applied as the common object would no longer be the exercise of the

right to private defence.

47. Applying the above to the facts of the present case, nothing in the

facts suggests that the death of Prem Singh was justified on account of

the exercise of the right of private defence of the accused. In other words, 36

the right of private defence was neither exercised nor exceeded in the

acts which led to the demise of the deceased.

48. In Onkarnath Singh and Others v. The State of U.P. [(1975) 3 SCC

276], it was held :

"36. Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the court will scrutinise their evidence with care. Each case presents its own features. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self-defence by the complainant party. For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises."

49. In State of M.P. v. Ramesh [(2005) 9 SCC 705], it was observed :

"11. The number of injuries is not always a safe criterion for determining who the aggressor was. It 37

cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. (See Lakshmi Singh v. State of Bihar 6 .) A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject-matter of right of private defence. The plea of right comprises the body or property ( i ) of the person exercising the right; or ( ii ) of any other person; and the right may be exercised in the case of any offence against the body and in the case of offences of theft, robbery, mischief or criminal trespass and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to 38

voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of right of private defence."

It was further observed :

"17. The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not been devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived."

50. In Babulal Bhagwan Khandare & Anr. v. State of Maharashtra,

[(2005) 10 SCC 404], This Court held :

"The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not 39

covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1.

18. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the 40

beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived."

In Anil Kumar v. State of U.P. [(2004) 13 SCC 257], it is stated

that in order to find whether right of private defence is available or not,

the injuries received by the accused, the imminence of threat to his 41

safety, the injuries caused by the accused and the circumstances whether

the accused had time to have recourse to public authorities are all

relevant factors to be considered.

51. To put it pithily, the right of private defence is a defence right. It

is neither a right of aggression or of reprisal. There is no 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.

52. The basic principle underlying the doctrine of the right of private

defence is that when an individual or his property 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 so,

the necessary corollary is that the violence which the citizen defending

himself or his property is entitled to use 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.

We may, however, hasten to add that the means and the force a

threatened person adopts at the spur of the moment to ward off the

danger and to save himself or his property cannot be weighed in golden 42

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

question 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

malicious. It would be repugnant to the very concept of private defence.

{See Dharam v. State of Haryana [2006 (13) SCALE 280]}.

53. Shyam Singh has assaulted Bhom Singh as also Jaswant Singh

with dhariya. This has been proved by 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 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, therefore, convicted under Section 323

IPC. Mangu (A-10) is acquitted of all charges. Kripal Singh (A-12) who 43

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 by lathis. We may notice that

Mangu Singh (A-15) has caused an injury to Rajendra Singh, as deposed

by Bharat Singh (PW-24).

54. In Joginder Ahir v. State of Bihar [AIR 1971 SC 1834], while

discussing the ratio laid down in State of Bihar v. Nathu Pandey [AIR

1970 SC 27], it was held :

"On the question of the applicability of Section 34 in cases of the present kind, we may refer to the decision of this Court in State of Bihar v. Nathu Pandey and Ors. A.I.R. 1970 S.C.R. 27. In that case C who was in possession of a plot on which Mahua trees were standing. He went there along with his party with the object of preventing the commission of theft of the Mahua fruit by the prosecution party. This he did in exercise of the right of private defence of property. In the alteration which followed two persons belonging to the prosecution party received Bhala injuries resulting in their death. Some members of the accused party were armed with bhalas but it was not possible to say who was armed and who out of them had inflicted the fetal injuries. It was found that persons who had caused the deaths had exceeded the right of private defence as they had inflicted more harm than was necessary for the purpose of the defence It was held that they could not be convicted Under Section 302 read with sec 149, Indian Penal Code or under sec 44

302 read with Section 34. It was pointed out. that the High Court had rightly found that the members of the accused party wanted to prevent the collection of Mahua fruit and that a common intention of all of them to murder the deceased was not established. In the present case on the findings of the High Court, there was no common intention of the accused persons to murder the deceased. They were, however, convicted for having exceeded the right of defence of property in furtherance of the common intention of all. We are unable to concur with the view of the Court that any such common intention could be attributed to the appellants on the facts and in the circumstances of the case. They certainly had the common intention of defending the invasion of the right to properly. While doing so if one or two out of them took it into his or their heads to inflict more bodily harm than was necessary, the others could not be attributed the common intention of inflicting the injuries which resulted in the death of the deceased. Section 34 can only be applied when a criminal act is done by several persons in furtherance of the common intention of all. No overt acts had been proved or established on the part of the appellants which showed that they shared the intention of the person or persons who inflicted the injury or injuries on the head of the deceased which led to his death. They cannot, therefore, possibly be held guilty of an offence Under Section 304 Part II read with Section 34 of the Indian Penal Code."

In an earlier case, Gurditta Mal & Ors. v. State of Uttar Pradesh

[AIR 1965 SC 257], it was held :

45

"...if two or more persons had common intention to commit murder and they had participated in the acts done by them in furtherance of that common intention, all of them would be guilty of murder. In that situation Section 96 of the Code says that nothing is an offence which is done in the exercise of the right of private defence. Though all the accused were liable for committing the murder of a person by doing an act or acts in furtherance of the common intention, they would not be liable for the said act or acts done in furtherance of common intention, if they had the right of private defence to voluntarily cause death of that person. Common intention, therefore, has relevance only to the offence and not to the right of private defence. What would be an offence by reason of constructive liability would cease to be one if the act constituting the offence was done in exercise of the right of private defence. To illustrate, if a person was guilty of murder by doing an act in furtherance of a common intention with others to commit murder, he could sustain the plea of the right of private defence only by establishing that he had the right to cause death of that person. It is true that, in ascertaining whether a group of persons had common intention to murder, the evidence adduced by the defence that they had common intention only to cause hurt is relevant. But once it is established that the common intention was to commit murder, the question of separate individual liability in the context of private defence would be out of place. Under Section 103 of the Indian Penal Code, the right of private defence of property extends, under the restrictions mentioned in Section 99 thereof, to the voluntary causing of death, if the offence, the committing of which or attempting to commit which occasions the exercise of the 46

right falls in one of the categories mentioned therein. That is to say, if it was not one of the offences enumerated therein, the person had no right of private defence extending to the voluntary causing of death."

In that case, it was found that the right of private defence did not

exist and common intention to commit murder was indeed found.

55. On a broad conspectus of the event, we are of the opinion that

Kripal Singh (A-16), Bhupinder Singh @ Bhopal Singh (A-17) and

Kuber Singh must be held to be guilty of Section 304 Part I of the Indian

Penal Code.

56. Jurisprudentially, in the light of the dicta of the above two cases, in

the situation that occurs before us, the situation is that, 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 Section 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 case then,

if the right of private defence had been exceeded by some persons, the 47

guilt of each of the accused proved to have exceeded the right of private

defence would have to be dealt with separately. The instant case,

however, falls under the former situation, and hence we have held Kripal

Singh (A-16), Bhupinder Singh @ Bhopal Singh (A-17) and Kuber

Singh Guilty under Section 304 Part I of the Indian Penal Code.

57. They are, therefore, must be held to have found a common object

for causing death of Prem Singh. They are sentenced to undergo 10

years' rigorous imprisonment each.

58. We may proceed on the basis that till the tractor carrying Kuber

Singh, Kripal Singh son of Manohar Singh and Bhupendra Singh arrived

at the scene, the intention of the accused were to hurl abuses and cause

simple injuries but the fact that they were aggressors and they initiated

the process is beyond any doubt. We are also not in a position to accept

the submission of Mr. Jain that participation of Bhupendra Singh has not

been proved in view of the statement made by Hakam Singh (PW-17).

Bhupendra Singh took a leading role. He was named in the First

Information Report which was recorded immediately. According 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 48

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).

59. When implicit reliance is placed on eye-witnesses, 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, there cannot be

any hard and fast rule. This aspect of the matter has been considered in

Dharmendrasingh @ Mansing Ratansing v. State of Gujarat [(2002) 4

SCC 679] wherein it was held :

"She did go and on return as soon as she entered into the house, she raised alarm, this part of statement is supported by PW-7 also, but for the fact that according to him on his arrival, he found no one else at the scene of occurrence. It would be a matter of minutes or a fraction thereof, if the accused had at once left the place by the other door, the moment he heard the alarm of PW-3. The PW-7 though a neighbour lives in different house and by the time he reached, it is not unlikely that he may have missed the appellant who had left the spot. Therefore, on the basis of the mere statement of PW-7 that on his arrival he found no one else it can not be said that PW-3 told a lie while stating that her husband had slipped away from the other door on hearing her cries. At the same time, we also find no good reason to suspect that she would falsely implicate her husband for 49

the killing of their sons by some one else. The real assailants of her own children would not be spared."

60. We are, therefore, in a position to rely solely upon the 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 shot at Bhom

Singh, Meharban Singh (PW-22) and Babu Lal (PW-23). The statement

made in the First Information Report has been supported 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).

61. In view of our abovementioned findings, however, we are of the

opinion that 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

(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 guilty of

individual act on their part.

50

We do 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 the submission of Mr. Jain that at the second stage, it

was Bhom Singh (PW-19) who had inflicted injury to Kuber Singh. A

statement in this behalf has been made by Ram Pratap Singh (PW-18).

We have also noticed hereinbefore 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 abjure the guilt on the

part of all accused persons.

62. For the views we have taken, we are of the opinion that it is not

necessary for us to refer to a large number of decisions whereupon

reliance has been placed by Mr. Jain. Kripal Singh son of Kalyan Singh

(A-12), Shyam Singh son of Kalyan Singh (A-1) and Laxman Singh son

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 Rs.1,000/- in default to undergo simple imprisonment for three

months. All the other accused, named hereinbefore, except Bhanwar

Singh are also sentenced to undergo rigorous imprisonment for three 51

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.

63. We are, however, of the opinion that Bhanwar Singh, a tractor

driver, and having not committed any overt act, cannot be held to be

guilty of any offence.

64. The appeals are allowed to the aforementioned extent. Bhanwar

Singh is set at liberty and directed to be released forthwith unless wanted

in connection with any other case.

...............................

J. (S.B. Sinha)

...............................

J. (Harjit Singh Bedi)

New Delhi May 16, 2008