2008 Supreme(SC) 925

2008(4) Supreme 179
SUPREME COURT OF INDIA
S.B. Sinha, J.
Bhanwar Singh & Ors. — Appellants
versus
State of M.P. — Respondent
Criminal Appeal No. 300 of 2007
with
Criminal Appeal Nos. 301 & 302 of 2007
Decided on : 16-05-2008

IMPORTANT POINTS
A common object to orchestrate an armed attack which might result in the offence of murder/culpable homicide is irreconcilable with the right to private defence.
The aggressors do not have any right of private defence.

Headnote:(a) Indian Penal Code, 1860 – Sections 96 and 100 – Free fight – The number of accused persons being 18 three of whom came in a tractor with guns, theory of free fight must be excluded. (Para 37)

        AIR 1954 SC 695 – Relied upon.

        (1976) 1 SCC 28; 1993 Supp.(2) SCC 490 – Distinguished.

        (b) Indian Penal Code, 1860 – Section 149 – Ingredients necessary for invoking section 149 re-stated. (Para 39)

        (2004) 4 SCC 205; AIR 1956 SC 513; (1999) 3 SCC 97 – Relied upon.

        (c) Indian Penal Code, 1860 – Section 149 – All of the accused being armed with weapons capable of causing grievous hurt it can be inferred that they were prepared to cause death – The other accused also may be said to have adopted this common object through their overt acts – Evidently the common object of the accused falls under Section 141, thirdly the offences being intended against the human body – Therefore, any of the accused found to have participated in the assault should be held guilty. (Para 40)

        (2004) 4 SCC 205; JT 1995 (8) SC 208 – Relied upon.

        (d) Indian Penal Code, 1860 – Section 97 – Facts clearly establish a common object to orchestrate an armed attack of such a serious nature that, even if the common object itself was not to cause death, the accused can be said to have been possessed of the knowledge that the offence of murder/culpable homicide would be committed in prosecution of this common object – Such a common object is irreconcilable with the right to private defence – Further, the accused being the aggressors, did not have any right of private defence. (Para 44)

        AIR 1981 SC 1379; AIR 2006 SC 321; (2005)12 SCC 657; (1975) 3 SCC 276; (2005) 9 SCC 705; (2005) 10 SCC 404; (2004) 13 SCC 257; 2006 (13) SCALE 280; AIR 1971 SC 1834; AIR 1970 SC 27 – Relied upon.

        (e) Indian Penal Code, 1860 – Sections 96 and 304 Part I – 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 – If, however, the common intention was only to commit an act which was permissible within the confines of Section 96 read with Section 98, then constructive liability under Section 34 cannot be said to have been accrued to the accused. (Para 56)

        (f) Criminal Trial – Appreciation of evidence – When implicit reliance is placed on eye-witnesses, some embellishment in the prosecution case caused by reason of evidence of any of prosecution witness although not declared hostile by itself cannot be a ground to discard the entire prosecution case. (Para 59)

        (2002) 4 SCC 679 – Relied upon.

        (g) Criminal Trial – Appreciation of evidence – One statement by one of the witnesses may not be taken out of context to abjure the guilt on the part of all accused persons. (Para 61)

       Facts of the case :

        1. Appellants in these appeals along with one Manohar Singh (A-2-since deceased), Nanuram (A-8 - since deceased) and Umrao Singh (A-7-since deceased) were tried and held guilty for commission of offences punishable under Sections 302/149, 147, 148 and 307/149 of the Indian Penal Code. 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.

        2. Relationship between the accused persons and the complainant party was strained on account of Panchayat election wherein Bhupendra Singh (A-16) was elected defeating Vikram Singh (PW-16).

        3. The incident occurred at about 02.30 p.m. on 25.10.1984 when Shivnath Singh (PW-13) was sitting in his house along with Ram Pratap Singh (PW-18), Prem Singh (deceased) and Bhom Singh (PW-19), accused persons Mohan Singh, Manohar Singh, Kripal Singh (A-12), Laxman Singh and Karan Singh (A-9) were also sitting nearby, abuses were exchanged between both the parties.

        4. Kripal Singh (A-16), Bhupendra Singh @ Bhopal Singh (A-17) and Kuber Singh armed with 12 bore guns at that time came on a tractor driven by Bhanwar Singh (A-6).

        5. When Jaswant Singh asked the accused persons not to quarrel, he was assaulted by the accused person. 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. Prem Singh succumbed to his injuries.

        6. The learned Sessions Judge held the accused persons guilty of commission of the offences which was upheld by the High Court.

       Findings of the Court :

        Kripal Singh (A-16), Bhupinder Singh @ Bhopal Singh (A-17) and Kuber Singh must be held to be guilty of Section 304 Part I. 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), apart from being guilty under Section 323/149 of the Indian Penal Code are also guilty of individual act on their part.

       Result : Appeals allowed to the extent indicated.