NAWAB ALI versus THE STATE OF UTTAR PRADESH

NAWABAU

THE STATE OF utTAR PRADESH

March 22, 1~74 .

(H. R. KHANNA AND P. K. GoSWAMI, 1J.J

lnMtm .l'enal Codo, m:. 302 r<atl wit/1 stc. 14? IJ'.C.-No vicarious liability uaku t!M person is • mtm!Nr of the unlawful assembly al tht time of the camml.rllon of oD•nt:•.

ni;.a-Uant and six othera were inter a/la, convicted for of!ence u/s 302 read With .... 14? ol the I.P.C. There was long SlalldinJ. enmity belwun --and Ibo deceased and the parties ·were involved in civil and crimjoal litlptioo. ·11 Wiii allesod tbat the accused attacked tbe deceased with latbis and thereafter carrled him to the houoo ·of one Mohd. Shafi and locked tbe door from inside. When the police arrived the door was broken open and only six accused were fotmcl there but nol tbe appellant. Tbe body of tbe deceased was also reeowred ~m tbo house. The Sessions ~u<f80 convicted all the accused includinJ the llllllOllazil for of!eoco u/s 302 read with Sec. 14? of the J.P.C. and Ibo conVJctioo aDa -were upheld by the High Court. .

Allowing tbo appeal,

HBu> :-(I) Thal from the evidence ii can bo said that tbe appellant was inside tbe house of Mohd. Shafi only for short time and thereafter left that .Place. 'lberc ~ no evidence on record to show that the deceased was stran~· latm before the appellant left tbe house. There is nothing to rule out the Jl(l8Sibil1ty ol the deceased lµiving been strangulated after the appellant left the house and when ho bad ceased to be ::t member of. the unlawful assembly. No liability can be futcned upon the appellant for anything done by the members of the unlaw-ful wembly nfter he had left the house and had ceased to be the memb:r of the unlawful assembly. [736G-HJ

_. (II) In the prosecution under section 149 l.P.C., it is incumbent upon the prosecution to show that the pc~on concerned was member of the unlawful asaembly· at the time of the commission of the offence. No vicarfQUs liability ........ _can· be fastened under section 149 I.P.C. if the person concerned goes away and ceases to be 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] ·

Cll.IMINAL APPELLATE JURISDICTION : Criminal Appeal No. 20 of 1971..

AplJCal bv Special Leave fmm the Judgment and Order dated lhe 26th Au211st. 1970 o! the Allabab<{j High Court (Lucknow Bench l in Criminal Appeal No. 8 of 1968. ·

.. P. Sin11h. for the appellant.

D. P. Yniyal, R. Bai1a and O. P. Rana, for the respondent.

The Judgment of the Court was delivered by

KHANNA, J.-Nawab Ali and six others including bis 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 wiib 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

under section 302 read with section 149 Indian Penal Code. Lesser sentences qf 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 wa.• long standing enmity between the seven accused, . wbo are related to each other, and Abdul HamiJ Khan. Disp_utes had ansen between •.ne parties in connection with some land belonging to Sarju Devi and the parties tml been involved in civil and crimmal litigation. Abdul Hamid Khan deceased and tbe accused belong to viJlagc Gulalpurwa. On the evening of June 17, 1967, it is stated, Abdul Hamid Khan went to the house of his co-villager liahao Khan (PW 5), because the two wanted to have talk in connection with case pendin2 before the Commissioner. Abdul Hamid Khan accompanied by Puttan Khan (PW 7) left the house of Bahao Khan :ct about 10 p.m. Wben the two reached near the house of Siddiq, l> the s.:ven accused armed with iathis emerged and attacked Atxlul Hamid Khan and his companion. Puttan Khan ran away and, while doing so. raised alarm. Abdul Hainid Khan was given lathi blows and was apprehended. Th<:. accuse'tl then lifted Abdul Hamid Khan and carried him to the house dI Mohd. Shafi accused. Alarm raised by Abdul Hamid Khan and Puttan Khan attracted Maiku 1'han tPW U. Nasir Khan (PW 3), Hafeezulla (PW 4J and some others including Rahim Khan. Rahim Khan tried to intervene but i1e too was J:iven lathi blows. Aftcr taking Abdul Hamid Khan inside the house of Mohd. Shafi, the accused closed the de.Qr 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 JC other;>ise they too would be assaulte\I. The accused thereafter went back to the house and closed the door. . 1'hosc present outsi'<k continued to stay there.

Maiku Khan (PW 1l, who is nephew of Abdul Hamid Khan, in the meantime, rushed to his h{IUSc and from there proceeded on his cycle to police station Nanpara, at distance of three miles from the pl= of occurrence. Report l,(a I was lodged at the police station 'G by Maiku Khan at l I.05 p.m.

Inspector Y ash want Singh accompanied · by some constables immediatelv proceeded to the place of qccurrencc and arrived there about.half an hour after mid-night. The Juspector found number uf person present outside the house of Mohd. S>1ali. The door of the house of Mohd. Shafi .had .been chained from outside a'1!d rhr motbrr of Mohd. Shafi was sitting there. The Inspector got the door opened. On going inside. the Inspector fouml th~ dead body ,,r Abdul Hamid Khan lving in the verandah of tbc house. Six of.

~-LS4SupCl/75

the aa;llSW 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 awav Jt the time the accused hat! emerged out of the house. 'fba ~ix uccased present inside the house were taken into custody. On lhe foJlowinJ? morclug the .InsP.Cctor prepared the inquest report and sent the dead bodv to the mortuary. Post mortem examination on the dead body was performed by Dr. J. B. Singh at Bahraich on Jun• lR, 1967 at 3 p.m.

Nawab Ali appellant surrendered himself in Conrt 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 staled that he had been falsely involved in this case because of enmity with Puttau 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 Harni<I Khan was the victim of murderous assault. Dr. J. B. Singh, who performed the post mortem examination on the dead body of the deceased, found IO iniuries caused with blunt weapon on the body. The doctor found that the brain, larynx, .trachea, lungs, intestine, pancrea>. snlcen and kidney were c:onges_ted. · Rings of the tmchca and hyoiJ · bon,1 were fractured. Blood was found in the tissues of the neck. Death wa; due t-0 aspbvxia as· result of strangulation of the neck.

The short question which arises for determination in this appeal is whethu the appellant is guilty of the offence under section 30.2 read with section 149 Indian Penal C<ide. So far as this question is cc1tcemed, 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 !othis and threatened those present to go awav. Five out of the six accused who had come out then went inside the house Nawab Ali, how~ver, did not go inside the house. Nasir Khan and others present there then surroundctl the house of Mohd. Shafi ~1d umainod there ti!! the arrival of the t>Olicc. The Police Inspector. wl•o got the l:loor of the hou<e 01>cned, 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 very short time and thereafter he left that place. There is no ev'dencc on t'c record to show ~iat Abdul Hamid Khan was strangulated before Nawab Ali "ppcllant left the house of Mohd. Shafi. Indeed. there is nothing to rnlo out tho possibility of Abdul Hamid Khan having been strangula:cil uft.cr Nawab Ali had left the house of Mohd. Shafi and had thu~ ceased lo 1». member of the unlawful assembly, No liabilitv, in our opinion. {:an he fastened upon Nawah Ali for anything done by the members of the unlawful assembly after he had left the house of

A. Mohd. Shafi and had thus ceased to be member of the unlawful asse.nbly.

Accordin~ to section 149 InUian Penal Code, if an offence is committed by any member of an unlawful assembly in prosecution o{ the comm.on object of that assembly, or such as the members of tlm assembl.Y knew to be likely to be committed in prosecution ot that object, every pets<.111 who, at the time of the committing o[ that offence, is member of the same assembly, is guilty of that olience. It is, therefore, inC'!!llbent upon the prosecution to show that tl1e person concerned was_ member of the unlawful assembly at the time of the ccmmission of the offence. If the person con· ccrned ~oes away and ceases to he member oI the unlawful assembly before the commission of the offence, no vicarious liability can oc fastened up01i him under section 14(} Indian P0nal Code because of any subsequent aq done by the other members of the unlawfal assembly. The c()nviction of NawaJ:> Ali appellant for tl1e >.lifencc under section 302 reacj with section 149 lndbn 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 hi' c0nviction under section 302 read with section 149 Jndiaif Pciwl Code. Ifo is acquitted on that score.