Full Judgment Text
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PETITIONER:
NAWAB ALI
Vs.
RESPONDENT:
THE STATE OF UTTAR PRADESH
DATE OF JUDGMENT22/03/1974
BENCH:
KHANNA, HANS RAJ
BENCH:
KHANNA, HANS RAJ
GOSWAMI, P.K.
CITATION:
1974 AIR 1228 1974 SCR (3) 734
1974 SCC (4) 600
ACT:
Indian Pena Code, sec. 302 read with sec.149 I.P.C.--No
Vicarious liability unless the person is a member of the
unlawful assembly at the time of the commission of offence.
HEADNOTE:
The appellant and six others were inter alia, convicted for
offence u/s 302 read 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.
It 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. 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 appellant for offence u/s 302
read with Sec. 149 of the I.P.C. and the conviction and
sentence were upheld by the High Court
Allowing the appeal,
HELD :-(1) 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 strangu-
lated 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 and when he
had ceased to be a member of the unlawful assembly. No
liability can be fastened upon the appellant for anything
done by the members of the unlawful assembly after he hid
left the house and had ceased to be the member of the
unlawful assembly. [736G-H]
(II) In the prosecution under section 149 I.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]
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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 0. 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
735
under section 302 read with section 149 Indian Penal Code.
Lesser sentences of 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
appellant 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 at 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 blow,-, 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
meantime, rushed to his house and from there proceeded on
his cycle to police station Nanpara, at a distance of three
miles from the place 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
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found a number of person present outside the house of Modh.
Shafi. The door of the house of Mohd. Shafi had been
chained from outside and the mother of Mohd. Shafi was
sitting there. The Inspector got the door opened. On going
inside, the Inspector found the dead body of Abdul Hamid
Khan lying in the verandah of the house. Six of
736
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 at the time the accused had emerged out of the
house. The six accused 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 are
concerned, denied the prosecution allegations about his
complicity and stated that he had been falsely involved in
this case because of enmity with Puttan 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 an
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 concerned, 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 threatened those present to go away. Five out of
the six accused who had come out then went inside the house
Nawab Ali, however, 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, be said
that the appellant was inside the house of Mohd. Shafi only
for a very short time and thereafter lie left that place.
There is no evidence on the record to show that Abdul Hamid
Khan was strangulated before Nawab Ali appellant left the
house of Mohd. Shafi. Indeed, there ’is nothing to rule
out the possibility of Abdul Hamid Khan having been
strangulated after Nawab Ali had left the house of Mohd.
Shafi and bad thus ceased to be a member of the unlawful
assembly. No liability, in our opinion. pan be fastened
upon Nawab Ali for anything done by the members of the
unlawful assembly after he had left the house- of
737
Mohd. Shafi and had thus ceased to be a member of the
unlawful assembly.
According to section 149 Indian Penal Code, if an offence is
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committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such
as the members of that assembly knew to be likely to be
committed in prosecution of 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 offence. It is,
therefore, incumbent upon the prosecution to show that die
person concerned was a member of the unlawful assembly at
the time of the commission of the offence. If the ’person
concerned goes away and ceases to be, a member of the
unlawful assembly before the commission of the offence, no
vicarious liability can be 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 offence 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 under section 302 read with section 149 Indian
Penal Code. He is acquitted on that score.
S.B.W. Appeal allowed.
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