Holding

When an unlawful assembly is armed with a common object to cause grievous injury, the right of private defence does not apply and all participants are liable for murder under Section 304 Part I IPC, even if the specific fatal injury cannot be pinpointed to any individual.

Summary

The case involved an armed clash between two village groups in Kantharia, Madhya Pradesh, where Prem Singh was killed and several others injured. The trial court convicted eighteen accused under Sections 302, 149, 147, 148, 307, 323 and 324 IPC, but the High Court altered some findings, especially regarding the plea of private defence and the theory of a free fight. On appeal, the Supreme Court examined whether the right of private defence could be invoked and whether the accused shared a common object under Section 149. It held that the assembly was unlawful, heavily armed, and had a common object to cause grievous hurt, making the right of private defence inapplicable; thus all participants who fired at the deceased were liable for murder under Section 304 Part I IPC. The Court rejected the free‑fight theory, affirmed convictions for the majority, acquitted Bhanwar Singh for lack of overt act, and ordered life imprisonment for the principal offenders. The appeals were partly allowed, with Bhanwar Singh released.

Issues considered

The applicability of the right of private defence under Sections 96‑101 IPC to the accused.
Whether the incident constituted a "free fight" exempting liability under Section 149 IPC.
Whether a common object under Section 141/149 IPC can be inferred despite uncertainty about who caused the fatal injury.
The extent of constructive liability of all members of an unlawful assembly for murder under Section 304 IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 465
Indian Penal Code, 1860s. 100, s. 101, s. 103, s. 141, s. 147, s. 148, s. 149, s. 302, s. 304, s. 307, s. 323, s. 324, s. 34, s. 96, s. 97, s. 98, s. 99

Subjects

private defenceunlawful assemblycommon objectSection 149 IPCmurderculpable homicidefree fightconstructive liabilityarmed assault

Judgment

[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 assem-
bly - 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 impris-
onment including life imprisonment - High Court not accept-
ing some of the findings of Trial Court - On appeal, Held: It is
not necessary to show which accused caused the fatal injury- D
All the three accused liable for commission of the offence ex-
ceeding 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 ac-
cused 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 limita-
tions - Discussed.
Appellants along with A2, AS, A7 (all the three since
deceased) were held guilty of committing offences pun-
G
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
opined that there had been a free fight between the par-
B ties; that the prosecution had not disclosed the entire
genesis of the occurrence; that the injuries on the per-
son of three accused had not been explained by the pros-
ecution; 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
the appellants were aggressors as they came heavily
D
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 com-
plainant party; and that Accused Nos. 16, 17 and 18, who
were arrested later on, were not prejudiced by non-ex-
.r E 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.
They merely took a lead to pacify both the groups. It is
G
only when Jaswant Singh was injured and accused per-
sons 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;
but he not only fired a shot at Bhom Singh (PW-19), he
H
BHANWAR SINGH & ORS. v. STATE OF 3
M.P.
y 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 evi-
dently 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 (A-
17), 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 inju- D
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. · ·
G
Gajanand & Ors. V State of Uttar Pradesh AIR 1954 SC
695" - referred to.
, Purari v. State of Rajasthan (1976) 1 SCC 28 and Bachan
Singh v. State of Punjab 1993 (supp.(2) SCC 490 - held in- H
4 SUPREME COURT REPORTS [2008] 9 S.C.R.

applicable.
A
r
3.1 All of the accused were, at the very least, armed
with weapons capable of causing grievous hurt. The pres-
ence of weapons such as 12 bore guns and spears leads
to the inference that that the accused persons were pre-
B 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 regard-
ing preparedness to cause death in the eventuality of an
armed assault. The incident was precipitated by the ag-
c gressive act of Manohar Singh pelting Jaswant Singh,
who was trying to pacify both groups, with a stone. Fol-
lowing 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
·o 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
the evidence, all of them had fired at Prem Singh, causing
E . injuries to Prem Singh which were likely to cause death.
Thus, it is clear that the common object of the accused in
the instant case falls under Section 141, thirdly as the com- r
mon 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 caus-
ing at the very least grievous hurt to their adversaries in
the course of an armed assault which could lead to more
G
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 com-
mon object of the assembly was not to cause death, it J
H
BHANWAR SINGH & ORS. v. STATE OF 5
M.P.
wo4ld. not be an unreasonable inference that all the ac- A
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 with-
stand;such an attack, bringing about the application of
the second portion of Section 149. Therefore, any of the B
•t- accused"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. Accord-
ing 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 de-
fence 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.

y
A 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 nee-
essary for the purpose of such defence. The other situa-
tion 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 com-
mon object to orchestrate an armed attack of such a seri-
ous 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 irrec-
oncilable 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]
Sone Lal v. State of UP, AIR 1981 SC 1379; Triloki Nath v.
E 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. Neces-
sity 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
'i-
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
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 appre-
hended 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 ab-
stract parameters which can be applied to determine as
.... to whether the means and force adopted by the threat-
ened person was proper or not. Answer to such a qµes- c
tion depends upon host of factors like the prevailing cir-
cumstances at the spot, his feelings at the relevant time;
the confusion and the excitement depending on the na-
ture 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, there-
fore, convicted under Section 324 and sentenced to un-
dergo 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, there- H
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 con-
victed 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
Indian Penal Code. [Para 55] [42-0-E]
c
6.3 If the voluntary causing of death is not permis-
sible 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 Sec-
tion 304 Part I of the Indian Penal Code. If, however, the
D
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 can-
not be said to have been accrued to the accused. In that
case then, if the right of private defence had been exceeded
E 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 un-
G
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 state-
ment made by Hakam Singh (PW-17). Bhupendra Singh
took a leading role. He was named in the First lnforma-
tion 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
a
with 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 dis-
card 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. [Para 59] [43-E-F] E
Dharmendrasingh @ Mansing Ratansing v. State of
Gujarat (2002) 4 SCC 679 - referred to.
7.2 This Court is in a position to rely solely upon the
--1
statement of Hakam Singh (PW-17) in this behalf. Simi- F
larly, 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 state-
ment made in the First Information Report has been sup- G
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) al-
though did not have take part in causing death of de-
ceased, however, indisputably, were present and partici-
pated 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-wit-
nesses some of whom are injured. One statement by one
of the witnesses may not be taken out of context to ab-
D 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
of Chand Singh are accused who have inflicted dharia
E injuries on Jaswant. Apart from being guilty under Sec-
tion 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
F 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 im-
prisonment 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
case. [Paras 63, 64] [45-E-F]
H
BHANWAR SINGH & ORS. v. STATE OF 11
M.P. [S.B. SINHA, J]

" CRIMINALAPPELLATEJURISOICTION: CriminalAppeal
A

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 Appel-
lants.
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 un-
E
der Sections 302/149, 147, 148 and 307/149 of the Indian Pe-
nal 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 com-
plainant 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 (PW-
B 13) was sitting in his house along with Ram Pratap Singh (PW-
18), Prem Singh (deceased) and Shorn Singh (PW-19), ac-
cused persons Mohan Singh, Manohar Singh, Kripal Singh (A-
12), 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 (A-
D 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 (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
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]

~ as Crime No. 129/84 on account of the injuries suffered by ac- A
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.
B
6. The post-mortem examination on the body of the de-
ceased Prem Singh was conducted by Dr. Murlidhar Varun (PW-
"" 2). He also examined the other injured witnesses. Another doc-
tor, viz. Or. Sunil Jamindar (PW-1), a Radiologist, also exam-
ined 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 (A- 0
).
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 E
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,
..., F
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.
G
(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,
H
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.
B (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
c 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
D ,;.,
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.
E
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 ).
F
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
G 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
together and specific overt-acts having been
H
·1
'
BHANWAR SINGH & ORS. v. STATE OF 15
M.P. [S.S. SINHA, J]
v attributed only against some of the accused persons, A
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 B
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
E
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 F
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 : G

(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
16 SUPREME COURT REPORTS [2008] 9 S.C.R.

A to commit the aforementioned offence and as their
y
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
B mind.
~
(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
c 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.
(vi) In view of the provisions contained in Sections 97,
D
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.
E
(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.
~
F 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- 1st
16), Bhupender Singh (A-17) a.nd Kuber Singh (A-18). They are
G 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,
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 un-
der 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 ex-
amined 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 wit- F
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) wit- G
ness 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 investiga- H

•
18 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 prosecu-
B tion witnesses Jaswant Singh, Ram Pratap Singh, Shorn Singh,
Rajendra Singh and Bharat Singh. Three of the accused per-
sons are also said to have suffered some injuries viz. Manohar
Singh, Mohan Singh and Laxman Singh.

c 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 com-
D 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
E 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 per-
sons from both the parties had assembled. There was exchange
of abuses. Jaswant Singh had requested Ram P,ratap Singh,
F 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 pros-
ecution witnesses, as noticed hereinbefore, were also injured. B
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,
or the complainant side was the aggressor. E

(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 F
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 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
H
20 SUPREME COURT REPORTS [2008) 9 S. C.R. ·

A 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
B 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 as-
saulted 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.
23. The High Court also took into consideration the fact
E 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 in-
formant, as regardss the manner of occurrence as also the roles ).-

F played by the accused persons have been taken into consider-
ation. 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 no-
ticed 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
same was not material.
24. Vikram Singh is a witness who had come to the scene
H

.
'l" .
BHANWAR SINGH & ORS. v. STATE OF 21
M.P. [S.B. SINHA, J]

of occurrence, a little later. From his evidence, however, it is A
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. Accord- B
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 (A-
12) 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 ac- D
).
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. E
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 F
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 H
22 SUPREME COURT REPORTS [2008] 9 S.C.R.

A 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. 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
c 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 Sasti came Shorn Singh (PW-19) was not
present.
0
Submission of Mr. Jain is that th'e evidence of this witness
. further shows that Shorn 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
E further serious injuries might be caused on his person. The ear
of Kuber Singh (A-18) was cut with the sword of Shorn Singh.
The accused persons, according to Mr. Jain, could exercise
their right of private defence, inasmuch the complainant party
was also armed.
F 29. Further submission of the learned counsel was that in
view of the statement of the said witness that except the per-
sons 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, Shorn Singh (A-13),
G Narvar Singh, Mangu Singh and Shupendra Singh did not com-
mit any overt act. So far as Shyam Singh, Manohar Singh,
Laxman Singh, Mohan Singh and Kripal Singh (A-12) are con-
cerned, they are said to have only participated in the first part of
the occurrence, namely, abuses and scuffle and they, therefore,
H can be held guilty under Section 323/149 IPC particularly hav-
BHANWAR SINGH & ORS. v. STATE OF 23
M.P. [S.B. SINHA, J]

ing regard to the fact that the .learned Trial Judge had disbe- A
-''
" lieved 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 pri-
vate defence had been made out.
30. Rajendra Singh, Bhupinder Singh (PW-21) and Bharat B
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 wit-
nesses that they had caused injuries to the accused persons c
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 tac-
tions of the village is not in dispute. The incident in question is
D
t- 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 E
witnesses were sitting; only a few of them might have lathis in
their hands which are usually carried by the villagers. Aowever,
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 F
~
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 depo-
sitions that Jaswant Singh intended to pacify them. Although
G
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 re-
liance on his evidence. There is no reason as to why we should
H
,
24 SL)PREME COURT REPORTS · [2008] 9 S.C.R. '·

A take a different view. The fact that he had received an injury on 'f I
his forehead caused by throwing of a stone is also not in dis-
pute. Sufferance of mul,tiple injuries on his person cannot also
be in dispute.

33. The scuffle between the parties started only thereafter.
B
34. In a case of this nature, the nature of the weapon pos-
sessed 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
c 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
D ·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
E 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.

· 36. Mohan Singh was armed with a gun. Apart from Mohar
F Singh, otherpersonswere 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 .
G 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 con- y
flicting evidences as to who had caused the fatal injuries to Prem
Singh, as Shivnath Singh has assigned it to Bhupendra Singh .
H (A-17), Hakam Singh has assigned it to Kuber Singh, Shorn
BHANWAR SINGH & ORS. v. STATE OF 25
M.P. [S.B. SINHA, J]

r Singh (PW-19) has assigned to Mohan Singh and Meharban A
Singh has assigned it to Bhupendra Singh (A-17). It is not nec-
essary 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 8
Singh, Kuber Singh and Mohan Singh, therefore, are clearly Ii-
~ able for commission of the offence exceeding their right of pri-
vate defence.

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 C
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
f- free fight, therefore, in our opinion, must be excluded. D
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 opin-
ion, are not applicable. Even assuming that there was a free
fight, the same must have started after Jaswant Singh's sus- E
taining the injury.

38. The first issue to be resolved in this matter is to ascer-
tain the point at which the 'common object' of the unlawful as-
-1 sembly in the instant case was crystallized, and the nature of F
this common object, as this would be necessary to rule on the
applicability of Section 149 of the Indian Penal Code (hereinaf-
ter 'IPC').
39. Regarding the application of Section 149, the follow-
ing observations are extracted from the case of Charan Singh G
v. State of UP [(2004) 4 SCC 205] :
"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, H
26 SUPREME COURT REPORTS [2008] 9 S.C.R.

A as specified in Section 141 ... The word 'object' means y
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
B 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,
c 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
D
ofthe 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
E ·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
F consideration of all the surrounding circumstances. It may :>-
be gathered from the course of conduct adopted by the
members of the assembly. What the common object of
the unlawful assembly is at a particular stage of the incident
is essentially a question of fact to be determined, keeping
G 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
H successful. Under the Explanation to Section 141, an
BHANWAR SINGH & ORS. v. STATE OF 27
M.P. [S.S. SINHA, J]

assembly which was not unlawful when it was assembled, A
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 B
even for some time thereafter, is lawful, may subsequeqtly
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 classi- C
fied as one of those described in Section 141 of the IPC. Sec-
ondly, 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 D
fact to be determined by considering nature of arms, nature of
the assembly, behaviour of the members etc. {see also
Rachamreddi Chenna Reddy v. State of Andhra Pradesh
[(1999) 3 sec 97)}.
Applying this to the facts of the instant case, we may E
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 F
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 G
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, H
28 SUPREME COURT REPORTS [2008] 9 S.C.R.

A the other accused were armed with 'lath is'.
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 guns and
B 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
c prior concert, at least among those three accused,
prior to arriving at the scene ~f 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
D
comm.on 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.
E vii) Following this, only when Jaswant Singh was injured
and the accused persons started assaulting him and
some others, BhomSingh (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
F 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 fired at Prem Singh,
causing injuries to Prem Singh which were likely to.
G
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
H
BHANWAR SINGH & ORS. v. STATE OF 29
M.P. [S.B. SINHA, J]
l
assembly was to commit an 'offence'. In the instant A
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 B
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 c
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 bomicide was likely to be committed in
prosecution~of such an armed assault on another D
group which was not prepared to withstand such an
attack, bringing about the application of the second
portion of Section 149.
xi) Therefore, any of the accused found to have
participated in the assault should be held guilty. E
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)]. F
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
Shorn Singh (PW-19), Mohan Singh had fired at him, where-
G
upon 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 per-
sons, namely, Bhupendra Singh together with Laxman Singh,
Mohan Singh, Kripal Singh (A-16), Kuber Singh and Kripal Singh H
30 SUPREME COURT REPORTS [2008] 9 S.C(.R.

A (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.

B 42. Section 96 to 106 of the IPC deal with the right of pri-
vate defence. Some of the relevant statutory provisions are
detailed hereafter. Section 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
c 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 ~
D
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 ex-
tends to causing death.
E
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.
F Hence, if the court were to reject this plea, there are two pos-
sible 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, alterna-
tively, this right did not extend to causing death. Such a ruling
may result in the application of Section 300, Exception 2, which
G
states that culpable homicide is not murder if the offender, in
)'
the exercise in good faith of the right of private defence of per-
son 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
H
BHANWAR SINGH & ORS. v. STATE OF 31
M.P. [S.B. SINHA, J]
'r
intention of doing more harm than is necessary for the purpose A
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 B
;...
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. c
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
t Lal v. State of U.P., AIR 1981 SC 1379 is relevant in this regard,
D
wherein it is stated that "[a]ggressors, even if they receive inju-
ries from the victims of their 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. E

45. It would also be instructive to look at the following ob-
servations 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 F
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 G
"(
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 H
32 SUPREME COURT REPORTS [2008] 9 S.C.R.

i'
A 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
B 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
c 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 ~
D
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
E 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 ~·
F categories mentioned therein. Th;:it is to say, if it was·not
one of the offences enumerated therein, the person h.ad
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 th~
G 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 . r
cases, the discussion of the evidence in compartments ~
one relating to the offence and the other to the right of
H private defence - may not be possible, for almost always
BHANWAR SINGH & ORS. v. STATE OF 33
MP. [S.B. SINHA, J]

the evidence relating to one part will have impact on the A
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 common
intention was not to commit murder but only to protect
their right and to cause hurt, if necessary." s
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 li-
ability to members of an unlawful assembly where an offence is C
committed by a member of an unlawful assembly in prosecu-
tion 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 pro-
vision would quite clearly not apply if the act constituting the D
offence was done in exercise of the rig ht to private defence. As
stated in the aforementioned extract - "What would be an of-
fence 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 E
above judgment, having established the common object, enter-
ing 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 F
was committed in prosecution of the common object of the as-
sembly 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 G
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 assem-
bly is to exercise the right to private defence, and if the alleged
offence has been committed in exercise or in excess of such
H
34 SUPREME COURT REPORTS [2008] 9 S.C.R.
•
t~

A right, it would mean that the 'common object' element of Sec- t
tion 149 would be absent. Similarly, a finding thatthere 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,
B 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
c justified on account of the exercise of the right of private de-
fence of the accused. In other words, the right of private de-
fence 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 UP
D
[(1975) 3 sec 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
E 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
F 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 ,_
1·;:
accused had received injuries in the same transaction in I"'
'
which the complainant party was assaulted, the plea of
G
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 instancewhere two parties t;

come armed with a determination to measure their strength .7'

H

•
BHANWAR SINGH & ORS. v. STATE OF 35
M.P. [S.B. SINHA, J]

t and to settle a dispute by force of arms and in the ensuing A
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 :
B
"11. The number of injuries is not always a safe criterion
.I-- for determining who the aggressor was. It 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.
c
The defence has to further establish that the injuries so .
caused on the accused probabilise the yersion of the right
of private defence. Non-explanation of the injuries
sustained by the accused at about the time of occurrence
D
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 E
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 §__.) A plea of right of
i private defence cannot be based on surmises and F
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 G
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 H
36 SUPREME COURT REPORTS [2008] 9 S.C.R.

A in the case of any offence against the body and in the t
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
B 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 -.j

to voluntary causing of death, the accused must show that "'
J"'
there were circumstances giving rise to reasonable
c 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."
D 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
E 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
~
F whereby an attack may be a pretence for killing. A right to ~

defend does not indude a right to launch an offensive,
particularly when the need to defend no longer survived."
50. In Babula/ Bhagwan Khandare & Anr. v. State of
Maharashtra, ((2005) 10 SCC 404], This Court held:
G
"The Fourth Exception of Section 300, IPC covers acts
done in a sudden fight. The said exception deals with a h.
)r
case of prosecution not covered by the first exception,
after which its place would have been more appropriate.
H T~e exception is founded upon the same principle, for in
BHANWAR SINGH & ORS. v. STATE OF 37
M.P. [S.B. SINHA, J]
i
both there is absence of premeditation. But, while in the A
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 B
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 c
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
D
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 E
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 'fignt' occurring in Exception
4 to Section 300, IPC is not defined in the IPC. It takes two F
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 beginning. A fight is a combat
between two and more persons whether with or without
G
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
H
38 SUPREME COURT REPORTS [2008] 9 S.C.R.

r
A 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'.
B 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 if. It
should not be allowed to be pleaded or availed as a pretext
for a vindictive, aggressive or retributive purpose of offence.
c It is a right of defence, not of retribution, expected to repel
unlawful aggression ahd 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
-\
D 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 UP. [(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 immi-
E nence of threat to his 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 con-
side red.
,..
F 51. To put it pithily, the right of private defence is a de- (
fence right.His neither a right of aggression or of reprisal. There
''
is no right of private defence where there is no apprehension of
danger. The rightof private defence is available only to one who
is suddenly confronted with the necessity of averting an impend-
ing danger rot of self creation. Necessity must be present, real
G
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 machin-
H ery is not readily available, that individual is entitled to protect
SHANWAR SINGH & ORS. v. STATE OF 39
l\Jl.P. [S.1:3. SINHA, J]
1
himself and his property. That being so, the necessary corollary A
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 reason-
ably apprehended and should not exceed its legitimate purpose.
We may, however, hasten to add that the means and the force a S
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 scales. It is neither possible nor prudent to

- lay down abstract parameters which can be applied to deter-
mine as to whether the means and force adopted by the threat- c
ened person was proper or not. Answer to such a question de-
pends 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. None-
theless, the exercise of the right of private defence can never
D
be vindictive or malicious. It would be repugnant to the very con-
cept of private defence. {See Dharam v. State of Haryana [2006
(13) SCALE 280]}.
53. Shyam Singh has assaulted Shorn Singh as also
Jaswant Singh with dhariya. This has been proved by Jaswant E
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 F
dhariya and hit Jaswant Singh, Ram Pratap Singh and
Shupendra Singh, as stated by Jaswant Singh, Shivnath Singh,
Ram Pratap Singh and Shupendra Singh (PW-21 ). Karan Singh
had caused injury upon Jaswant Singh by a lathi. He is, there-
fore, convicted under Section 323 IPC. Mangu (A-10) is acquit-
G
ted 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. Shim 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 de-
H
40 SUPREME COURT REPORTS [2008] 9 S.C.R.
~
A posed 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:

B "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.LR.
1970 S.C.R. 27. In that case·c who was in possession of
a plot on w_hich Mahua trees were standing. He went there
c 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
D
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
E 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 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 r
F 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
G 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
H
BHANWAR SINGH & ORS. v. STATE OF 41
M.P. [S.S. SINHA, J]

intention of defending the invasion of the right to properly. A
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 8
~· 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 c
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: D
" ... 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 E
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
1 would not be liable for the said act or acts done in
furtherance of common intention, if they had the right of F
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 G
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 H
42 SUPREME COURT REPORTS [2008) 9 S.C.R.

)'-
A 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
B murder, the question of sep;:uate 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
c of death, if the offence, the committing of which or
attempting to commit which occasions the exercise of the
rightfalls 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." ,.;
D
In that case, it was found that the right of private defence
did not exist and common intention to commit murder was in-
deed found.
55. On a broad conspectus of the event, we are of the
E opinion that Kripal Singh (A-16), Bhupinder Singh@ Bhopal
Singh (A-17) and Kuber Singh must be held to be guilty of Sec-
tion 304 Part I of the Indian Penal Code.
56. Jurisprudentially, in the light of the dicta of the above r
F 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
G
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 guilt of each of the accused proved to have
H
BHANWAR SINGH & ORS. v. STATE OF 43
M.P. [S.B. SINHA, J]
i
exceeded the right of private defence would have to be dealt A
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 com- B
mon 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 carry-
ing Kuber Singh, Kripal Singh son of Manohar Singh and c
Bhupendra Singh arrived at the scene, the intention of the ac-
cused 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
D
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 im-
mediately. 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 bore double barrel E
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 rea- F
son of evidence of any of prosecution witness although not de-
clared 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
G
Dharmendrasingh @ Mansing Ratansing v: State of Gujarat
[(2002) 4 sec 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 H
44 SUPREME COURT REPORTS [2008] 9 S.C.R.

t-
A 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
B the time he reached, it is not unlikely that he may have
missed the appellant who had left the spot. Therefore, on i
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
c also find no good reason to suspect that she would falsely
implicate her husband for the killing of their sons by some
one else. The real assailants of her own children would
not be spared."

D 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 Shorn Singh, Meharban Singh (PW-
E 22) and Babu Lal (PW-23). The statement made in the First
Information Report has been supported by Shiv Nath Singh (PW- t·1
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
,..
F 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
G 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.
We do not agree with the judgment of the Trial Court that
throwing of stone on Jaswant Singh should not be believed. It is
H
BHANWAR SINGH & ORS. v. STATE OF 45
M.P. [S.B. SINHA, J]

also difficult to accept the submission of Mr. Jain that at the A
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 herein-
before the consistent statements made by other eye-witnesses
some of whom are injured. One statement by one of the wit- B
nesses 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 deci-
sions whereupon reliance has been placed by Mr. Jain. Kripal C
Singh son of Kalyan Singh (A-12), Shyam Singh son of Kalyan
Singh (A-1) and Laxman Singh son of Chand Singh are ac-
cused 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 D
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 impris-
onment for three years under Section 323/149 of the Indian Penal E
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. F
64. The appeals are allowed to the aforementioned ex-
tent. Bhanwar Singh is set at liberty and directed to be released
forthwith unless wanted in connection with any other case.
G.N. Appeals Partly allowed.