Case Note & Summary
The case arose from a long-standing enmity between seven accused persons and Abdul Hamid Khan over land belonging to Sarju Devi, which had led to civil and criminal litigation. On the evening of June 17, 1967, Abdul Hamid Khan went to the house of co-villager Bahao Khan and left at about 10 p.m. accompanied by Puttan Khan. Near the house of Siddiq, the seven accused, armed with lathis, attacked them. Puttan Khan escaped and raised an alarm, while Abdul Hamid Khan was beaten and carried to the house of Mohd. Shafi, one of the accused. The door was closed from inside. Persons attracted by the alarm, including Maiku Khan, Nasir Khan, Hafeezulla, and Rahim Khan, gathered outside. Rahim Khan tried to intervene but was also beaten. Six accused came out of the house armed with lathis and threatened the crowd; all except the appellant went back inside and closed the door. The appellant did not re-enter and was not seen thereafter. Maiku Khan lodged a report at police station Nanpara at 11:05 p.m. The police arrived around midnight, found the door chained from outside with the mother of Mohd. Shafi sitting there. Inside, they found the dead body of Abdul Hamid Khan and six accused. The appellant was not present. The prosecution alleged he had slipped away when the accused emerged. The post-mortem by Dr. J.B. Singh revealed ten blunt weapon injuries, fracture of hyoid bone and tracheal rings, and death due to asphyxia from strangulation. The appellant surrendered on June 23, 1967, and denied the allegations, claiming false implication due to enmity with Puttan Khan. The Sessions Judge Bahraich convicted all seven accused under Section 302 read with Section 149, Section 323 read with Section 149, Section 147, Section 342, and Section 364 of the Indian Penal Code. The Allahabad High Court dismissed the appeal. The Supreme Court granted special leave limited to the conviction under Section 302 read with Section 149 IPC. The core legal issue was whether the appellant could be held vicariously liable under Section 149 IPC for murder when he had left the unlawful assembly before the offence was committed. The prosecution argued that the appellant was a member of the unlawful assembly from the time of attack until the deceased was carried into the house and that his slipping away did not absolve him. The appellant contended that he had left before the murder and therefore was not a member of the assembly at the time of the offence. The Court, after quoting Section 149 IPC, noted the evidence of Nasir Khan that when the accused came out, the appellant did not go back inside and was absent when the police arrived. It held that the appellant was inside the house only for a short time and left. There was no evidence that Abdul Hamid Khan was strangulated before the appellant left; the possibility of strangulation after his departure could not be ruled out. Therefore, no vicarious liability could be fastened on the appellant for acts committed by other members after he had ceased to be a member of the unlawful assembly. The Court emphasized that it is incumbent on the prosecution to prove that the person concerned was a member of the unlawful assembly at the time of the commission of the offence. Consequently, the appeal was allowed to the extent of setting aside the appellant's conviction under Section 302 read with Section 149 IPC, and he was acquitted of that offence. The other convictions were not disturbed.
Headnote
A) Criminal Law - Vicarious Liability in Unlawful Assembly - Section 149 IPC requires membership at the time of commission of offence - Indian Penal Code, 1860, Sections 149, 302 read with 149 - The appeal concerned conviction under Section 302/149 IPC for murder by strangulation; the court considered whether an accused who left the assembly before the offence could be held liable; evidence showed he was not present at the time of murder. Held that if a person goes away and ceases to be a member of the unlawful assembly before the commission of the offence, no vicarious liability can be fastened under Section 149 IPC (Paras 737A-C). B) Criminal Law - Proof of Membership and Timing of Offence - Prosecution must prove accused was member of unlawful assembly at the time the offence was committed - Indian Penal Code, 1860, Section 149 - The court noted that appellant came out of the house with others but did not re-enter and was absent when police arrived; no evidence showed deceased was strangulated before appellant left; possibility of strangulation after departure could not be ruled out. Held that no liability can be fastened for acts committed after appellant left and ceased to be a member of the unlawful assembly (Paras 736G-H).
Issue of Consideration
Whether the appellant was guilty under Section 302 read with Section 149 Indian Penal Code when he had left the unlawful assembly before the offence of murder was committed, and whether vicarious liability under Section 149 IPC can be fastened on a person who ceased to be a member of the unlawful assembly before commission of the offence.
Final Decision
Appeal allowed; appellant's conviction under Section 302 read with Section 149 Indian Penal Code set aside; appellant acquitted of that offence. Other convictions remained undisturbed.
Law Points
- Section 149 IPC imposes vicarious liability only on persons who are members of the unlawful assembly at the time of commission of the offence
- prosecution must prove membership at the time of offence
- if accused leaves the assembly before the offence is committed no vicarious liability can be fastened
- mere presence at an earlier stage does not make person liable for later acts of other members
