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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. 738