Headnote
The reporters’ summary of the points decided. It is not part of the judgment.
NAWAB ALI ve” THE STATE OF UTTAR PRADESH
March 22, 1974. {H. R. KHANNA AND P. K, GoswWaAMI, J5.]
indian Penal Code, sec. 302 read with sec. 149 1,P.C._—No vicarious liability unless the person is a member of the undawful assembly af the time of the commission of offence.
‘The .appeliant and six others were inter alia, convicted for offence n/s 302 Tead with sec. 149 of the I.P.C. There was long standing enmity between accused and the deceased and the parties were involved in civil and criminal litigation. Ut was alleged that the accused attacked the deceased with lathis and thereafter carried him to the house of one Mohd. Shafi and locked the door from inside. When the police arrived the door was broken open and only six accused were found: there but not the appellant. The body of the deceased was also recovered from the house. The Sessions Judge convicted all the accused including the apgellant for offence nhs 302 read with Sec. 149 of the I.P.C. and the conviction sentence were upheld by the High Court, :
Allowing the appeal,
__ ,Hetp :—(I) That from the evidence it can be said that the appellant was inside the house of Mohd. Shafi only for a short time and thereafter left that place. There was no evidence on record to show that the deceased was stranguated before the appellant left the house. There is nothing to rule out the possibility of the deceased having been strangulated after the appellant left the house when he had ceased to be 2 member of the unlawful assembly, No liability can be fastened upon the appellant for anything done by the members of the unlawfal assembly after he had left the house and had ceased to be the member of the unlawful assembly. [736G-H] Hl
_ (2) In the prosecution under section 149 1-P.C., it is incumbent upon the prosecution to show that the person concerned was a member of the unlawful assembly’ at the time of the commission of the offence. No vicarious liability can be fastened under section 149 I.P.C. if the person concerned goes away and ceases to be a member of the unlawful assembly before the commission of the offence and subsequently the offence is committed by other members of the:
unlawful assembly, [737A-C]
Judgment
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 20 of 1971.. Appeal by Special Leave from the Judgment and Order dated the 26th August, 1970 of the Allahabad High Court (Lucknow Bench) in Criminal Appeal No. 8 of 1968.
B. P. Singh, for the appellant. D. P. Yniyal, R. Bana and O. P. Rana, for the respondent. The Judgment of the Court was delivered by
KHANNA, J.—Nawab Ali and six others including his two sons Naim Khan and Azim Khan were convicted by learned Sessions Judge Bahraich under section 302 read with section 149 Indian Penal code, section 323 read with section 149, Indian Penal Code, section 147, section 342 and section 364 Indian Penal Code. Each of the seven accused was sentenced to undergo imprisonment for life for the offence
NAWAB ALI V. U.P. STATE (Khanna, J.) 735 under section 302 read with section 149 Indian Penal Code. Lesser sentences cf imprisonment were awarded for the other offences. Appeal filed by the seven accused was dismissed by the Allahabad High Court. Nawab Ali alone then came up in appeal to this Court by special leave. The leave was, however, restricted to the question of conviction of the appelalnt for the offence under section 302 read with section 149 Indian Penal Code.
The case of the prosecution is that there was long standing enmity between the seven accused, who are related to each other, and Abdul Hamid Khan. Disputes had arisen between the parties in connection with some land belonging to Sarju Devi and the parties had been involved in civil and criminal litigation. -
Abdul Hamid Khan deceased and the accused belong to village Gulalpurwa. On the evening of June 17, 1967, it is stated, Abdul Hamid Khan went to the house of his co-villager Bahao Khan (PW 5), because the two wanted to have a talk in connection with a case pending before the Commissioner. Abdul Hamid Khan accompanied by Puttan Khan (PW 7) left the house of Bahao Khan zt about 10 p.m. When the two reached near the house of Siddiq, the seven accused armed with lathis emerged and attacked Abdul Hamid Khan and his companion. -Puttan Khan ran away and, while doing so, raised alarm. Abdul Hamid Khan was given lathi blows and was apprehended. The accused then lifted Abdul Hamid Khan and carried him to the house of Mohd. Shafi accused. Alarm raised by Abdul Hamid Khan and Puttan Khan attracted Maiku Khan (PW 1), Nasir Khan (PW 3), Hafeezulla (PW 4) and some others including Rahim Khan, Rahim Khan tried to intervene but he too was given lathi blows. After taking Abdul Hamid Khan inside the house of Mohd. Shafi, the accused closed the door of the house. Attempt was made by those present to get the door of the house opened. Six of the accused then emerged from the house armed with lathis and threatened those present to go- away and that otherwise they too would be assaulted. The accused thereafter went back to the house and closed the door. - Those present outside continued to stay there.
Maiku Khan (PW 1), who is nephew of Abdul Hamid Khan, in: the incantime, rushed to his house and from there proceeded on his cycle to police station Nanpara, at a distance of three miles from the .. places of occurrence. Report Ka 1 was lodged at the police station by Maiku Khan at 11.05 p.m.
Inspector Yashwant Singh accompanied -by some constables immediately proceeded to the place of occurrence and arrived there about half an hour after mid-night. The Inspector found a number of person present outside the house of Mohd. Snafi. The door © of the house of Mohd. Shafi had. been chained from outside and the nicther of Mohd. Shaft was sitting there. The. Inspector got the door opened. On going inside, the Inspector found. the dead uf Abdul Hamid Khan lying in the verandah of the house. Six of
4~-LS4SupCl/75 we
436 . SUPREME COURT REPORTS (1974) 3 s.c.r.
the accused were present inside the house. Nawab Ali appellant Was, however, not present there.
The case of the prosecution further is that Nawab Ali had slipped away al the time the accused had emerged out of the house. ‘[ho six uccused present inside the house were taken into custody. On the following morning’ the Inspector prepared the inquest report and sent the dead body to the mortuary. Post mortem examination on the dead body was performed by Dr. J. B. Singh at Bahraich on June 18, 1967 at 3 p.m.
Nawab Ali appellant surrendered himself in Court on June 23, 1967. He was thereafter put under arrest,
At the trial Nawab Ali appellant, with whom we ate concerned, denied the prosecution allegations about his complicity and stated that he had been falsely involved in this case because of enmity with Pultan Khan.
The trial court and the High Court accepted the prosecution case and convicted the accused as above.
it has not been disputed before us that Abdul Hamid Khan was the victim of a murderous assault. Dr. J. B. Singh, who performed: the post mortem examination on the dead body of the deceased, found 10 injuries caused with blunt weapon on the body. The - doctor found that the brain, larynx, trachea, lungs, intestine, pancreas. spleen and kidney were congested. - Rings of the trachea and hyoid ‘bone were fractured. Blood was found in the tissues of the neck. Death was due to asphyxia as a result of strangulation of the neck.
The short question which arises for determination in this appeal is whether the appellant is guilty of the offence under section 302 read with section 149 Indian Penal Code. So far as this question is cchcerned, we find that it is in the evidence of Nasir Khan (PW 3) that when he and others rushed to the house of Mohd. Shafi on hearing _ alarm, all the accused except Rouf came out of the house armed with lathis and throatened those present to go away. Five out of the six accused who had come out then went inside the house Nawab Ali, howaver, did not go inside the house. Nasir Khan and others present there then surrounded the house of Mohd. Shafi | and remained there till the arrival of the police. The Police Inspector. who got the door of the house opened, found only six of the accused present there. The appellant was not among those six accused. It can therefore, bp said that the appellant was inside the house of Mohd. Shafi only for a very short time and thereafter he Icft that place. There is no evidence on tre record to show that Abdul Hamid Khan was strangulatcd bofore Nawab Ali appellant left the house of Mohd. Shafi. Indeed. there is nothing to rule out the possivility of Abdul Hamid Khan having been strangulated — after Nawab Ali had left the house of Mohd. Shafi and had thus ceasod to be a member of the unlawful assembly. No liability, in our Opinion, gan be fastened upon Nawab Ali for anything done by the ancoinbers of the unlawful assembly after he had Ieft the housc of fe ope ng
NAWAB ALLY. U.P, STATE (Khanna, J.) 737
Mohd. Shafi and had thus ceased to be a member of the unlawful assembly.
According to section 149 InWian Penal Code, if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or.such as the members of thax assembly knew to be tikely to be committed in, prosecution ot that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that ofience. It is, therefore, incumbent upon the prosecution to show that the person concerned was a member of the unlawful assembly at the time of the ccimmission of the offence. If the person concorned goes away and ceases to be a member of the unlawful assembly before the commission of the offence, no vicarious liability can pe fastened upon him under section 149 Indian Penal Code because of any subsequent act done by the other members of the unlawful assembly. The conviction of Nawab Ali appellant for the vifence under section 302 read with section 149 Indian Penal Code in the circumstances cannot be held to be well found. We, therefore, accept the appeal of Nawab Ali to the extent of setting aside his conviction wider section 302 read with section 149 Indian’ Penal Code. He is acquitted on that score. .
S.B.W. Appeal allowed.