In a free fight, each participant is not liable for his own individual act, as the common intention of the unlawful assembly to cause injuries to the opposite side makes them constructively liable for the acts of the other persons of the unlawful assembly.

Judgment

RAGHUBAR DAYAL, J. : This appeal, by special leave, is against the judgment of the Punjab High Court dismissing the appellant s appeal and confirming his conviction under S. 302 and S. 307 read with S. 149, I.P.C.

2. The case for the prosecution was that the appellant and twelve other persons who were tried with him, had, on account of a dispute about the possession of a plot of land assaulted Darshan, deceased, and his companions, when they were returning from their fields and that Darshan Singh and his companions also struck the appellant s party in self-defence. In the incident, Darshan and Nand Lal received injuries on the one side while Daya Ram, Hamela and Kartar Singh the appellant received injuries on the appellant s side. Darshan Singh died on account of the injuries received.

3. Daya Ram stated that when he, Kartar Singh, Hamela and a few other persons were going near about their field, Darshan Nand Lal and others, who happened to be sitting on a well, challenged them and Nand Lal remarked that he would not let him (Daya Ram) escape. At this fight ensued between both the parties in which injuries were inflicted on each other. Daya Ram said that he did not know who speared Darshan, deceased.

4. Kartar Singh stated that a member of Nand Lal s party caused a spear blow in his abdomen and that he then ran away. He states that he did not cause any injury to anybody.

5. Hamela stated that Darshan and others assaulted his party when they were going to plough the land in dispute and that they caused them injuries in self-defence.

6. The learned Sessions Judge, after nothing the allegations of the parties and the admitted facts about the dispute with respect to the plot of land, said :

"It is also not denied that the parties in this case instead of taking resort to law wanted to force the issue by the force of arms and for that purpose both the parties collected number of persons for Seel and other villages who were armed with deadly weapons such as spears, gandasis and sticks and in order to decide the issue had a pitched fight which was pre-concerted.

The Public Prosecutor therefore maintained that under these circumstances the question of right of self-defence to any party does not arise."

The learned Sessions Judge also said :

"This proposition of law has not been challenged by the defence. As observed above, in this case, both the parties, in order to assert their rights, had a free fight which was pre-concerted with the set purpose of forcing the issue mentioned above."

He further said :

"The only point therefore which requires determination in this case is whether all or only some of the accused did participate in this assault,"

and came to the conclusion that there accused, viz., Daya Ram, Hamela and Kartar Singh, who had admitted their presence in the incident and had received injuries, were proved to have taken part in that free fight, and that the participation of the other ten accused in the case was not established beyond doubt. He, however, said :

"Although I feel that Daya Ram, Hamela and Kartara accused were accompanied by at least 9 or 10 persons, but it is difficult to say who those 9 or 10 persons were."

He therefore acquitted those ten persons giving them the benefit of doubt.

7. The three convicted persons preferred an appeal to the High Court.

8. Two questions were urged at the hearing. One was that when there was no evidence that there were more than five persons in the fight on the side of the appellants the learned Sessions Judge could not, in law, record a conviction under S. 302 read with S. 149, he having acquitted the other ten persons specifically named by the P. Ws., as being the companions of the appellants. The other point was that the other party was the aggressor.

9. The High Court, on the first point, said :

"The circumstances of this case leave no manner of doubt in our mind that there were a large number of persons on the side of the appellants and this number must have exceeded five, and was more