# Harnath Singh & Ors. (In Jail) v. State of U.P

- **Citation:** (2022) 1 ILRA 514
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-24
- **Case number:** Criminal Appeal No. 2345 of 1983
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harnath-singh-ors-in-jail-v-state-of-u-p-47475
- **Pages:** 20

## Headnote

Criminal Law - Indian Penal Code, 1860-
Section
149
-
Unlawful
Assembly-
Common Object- As per Section 149 IPC
to convict a person with the aid of this
Section, it is necessary to prove the
following ingredients; namely, (1) the
offence is committed by any member of an
unlawful assembly; and (2) the offence
must be committed in prosecution of the
common object of an unlawful assembly;
or such as the members of that assembly
knew to be likely to be committed in
prosecution of that object.

Section 149 of the IPC fastens vicarious liability
upon every member of an unlawful assembly for
the offence actually committed by other
members of the same unlawful assembly in
prosecution of a common object which the
members of such unlawful assembly had
knowledge of likelihood of the commission of
that offence.

Criminal Law - Indian Penal Code, 1860 -
Section 149- Keeping in mind that all the
accused were stated to be standing in
front of their own house and not having
gone as a group of persons, armed, to
another place to commit an offence, they
cannot be said to be part of an unlawful
assembly with a common object, at the
stage, when the gun shots were fired-
Members of an unlawful assembly may
have community of object upto the certain
point of time and not beyond that. It
cannot with certitude be held that the
common object of the assembly was
either to commit the murder of Dhirendra
Singh (the deceased) or to cause such
bodily injuries to him or to anybody else
that may result in death because the
accused persons did not move as a group
to assault the victims-As the prosecution
failed to provide evidence to prove that
accused persons including the surviving
appellants held a common object to cause
the death of Dhirendra Singh or to cause
any such injury which in ordinary course
of event would have resulted in his death,
the surviving appellants cannot be held
liable for the murder of Dhirendra Singh
under Section 302 IPC with the aid of
Section 149 IPC- Even the rest of the
accused persons could get collected with
their lathies but that by itself would not
be sufficient to infer that they shared
common object with the co-accused, who
fired at the deceased.

Where the appellants were standing infront of
their home and had not gone as a group and it
cannot be established that they shared the
common object of committing murder of the
deceased, as they were armed with lathies
which were wielded after shots were fired by
the other accused, the present appellants
cannot be convicted u/s 302 IPC with the aid of
Section 149 IPC.

Criminal Law - Indian Penal Code, 1860 -
Section 149 - In stage (C), according to
the prosecution, a total of five persons
including
the
surviving
appellants
Brijendra Singh (appellant no.5) and
Saleem (appellant no.7) participated, but
as we have earlier held that involvement
and presence of Saleem (appellant no.7)
appears to be doubtful and benefit of
doubt is, therefore, extended in his favour,
therefore, Saleem (appellant

## Text

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514 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)01ILR A514
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.12.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 2345 of 1983

Harnath Singh & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.D.N. Singh, Sri Pradeep Kumar
Mishra, Sri V.S. Sengar, Sri Vinay Saran

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code, 1860-
Section
149
-
Unlawful
Assembly-
Common Object- As per Section 149 IPC
to convict a person with the aid of this
Section, it is necessary to prove the
following ingredients; namely, (1) the
offence is committed by any member of an
unlawful assembly; and (2) the offence
must be committed in prosecution of the
common object of an unlawful assembly;
or such as the members of that assembly
knew to be likely to be committed in
prosecution of that object.

Section 149 of the IPC fastens vicarious liability
upon every member of an unlawful assembly for
the offence actually committed by other
members of the same unlawful assembly in
prosecution of a common object which the
members of such unlawful assembly had
knowledge of likelihood of the commission of
that offence.

Criminal Law - Indian Penal Code, 1860 -
Section 149- Keeping in mind that all the
accused were stated to be standing in
front of their own house and not having
gone as a group of persons, armed, to
another place to commit an offence, they
cannot be said to be part of an unlawful
assembly with a common object, at the
stage, when the gun shots were fired-
Members of an unlawful assembly may
have community of object upto the certain
point of time and not beyond that. It
cannot with certitude be held that the
common object of the assembly was
either to commit the murder of Dhirendra
Singh (the deceased) or to cause such
bodily injuries to him or to anybody else
that may result in death because the
accused persons did not move as a group
to assault the victims-As the prosecution
failed to provide evidence to prove that
accused persons including the surviving
appellants held a common object to cause
the death of Dhirendra Singh or to cause
any such injury which in ordinary course
of event would have resulted in his death,
the surviving appellants cannot be held
liable for the murder of Dhirendra Singh
under Section 302 IPC with the aid of
Section 149 IPC- Even the rest of the
accused persons could get collected with
their lathies but that by itself would not
be sufficient to infer that they shared
common object with the co-accused, who
fired at the deceased.

Where the appellants were standing infront of
their home and had not gone as a group and it
cannot be established that they shared the
common object of committing murder of the
deceased, as they were armed with lathies
which were wielded after shots were fired by
the other accused, the present appellants
cannot be convicted u/s 302 IPC with the aid of
Section 149 IPC.

Criminal Law - Indian Penal Code, 1860 -
Section 149 - In stage (C), according to
the prosecution, a total of five persons
including
the
surviving
appellants
Brijendra Singh (appellant no.5) and
Saleem (appellant no.7) participated, but
as we have earlier held that involvement
and presence of Saleem (appellant no.7)
appears to be doubtful and benefit of
doubt is, therefore, extended in his favour,
therefore, Saleem (appellant no.7) cannot
be convicted under Section 147 and 323
1 All. Harnath Singh & Ors. Vs. State of U.P.
515
IPC for even stage (C) of the entire
incident. Appellant No. 5 (Bijendra Singh)
was member of an unlawful assembly and
participated in stage (C) of the entire
incident and was armed with lathi along
with other co-accused persons and injury
report of Rajendra Singh (PW-2) shows
that he sustained a contusion with two
abrasions, therefore, appellant no. 5
(Bijendra Singh) can be convicted under
Section 323 IPC with the aid of Section
149 IPC.

Where the accused has inflicted injuries at a
subsequent stage and without participating
in the offence of committing murder then
instead of Section 302 IPC readwith Section
149 IPC, he shall be liable for having
committed the
offence punishable
with
Section 323 IPC readwith Section 149 IPC.

The
Juvenile
Justice
(Care
and
Protection
of
Children)
Act,
2015-
Section 18(1) (d) & 21 - The claim of
juvenility was raised after the Juvenile
Justice
(Care
and
Protection
of
Children) Act, 2015 had come into force
with
effect
from
15.01.2016.
The
proviso to sub-section (2) of Section 9
of
the
Juvenile
Justice
(Care
and
Protection of Children) Act, 2015 (for
short Act, 2015) enables raising of a
claim before any court even after final
disposal of the case and such a claim is
to be determined in accordance with
the provisions contained in the Act and
the Rules made thereunder even if the
person has ceased to be a child on or
before the date of commencement of
the Act-Comparison of the provisions
of Section 21 of Juvenile Justice Act,
1986 with the provisions of Section 18
of
the
Juvenile
Justice
(Care
and
Protection of Children) Act, 2015 -
there exist similar provisions for orders
that could be passed in respect of a
juvenile in conflict with law including
direction
to
pay
fine.
Hence,
by
applying the law laid down by the Apex
Court in Jitendra Singh's case (Supra)
and by keeping in mind the provisions
of Section 18(1) (d) of the Act,
2015, and provisions of Section 21 of of
Juvenile Justice Act, 1986, we are of
the
view
that
the
appropriate
punishment that ought to be awarded
to appellant no.5 (Brijendra Singh),
who was a juvenile on the date of the
incident, would be 'fine'.

Settled law that the claim of juvenility can be
raised at any time and the same has to be
adjudicated in terms of the Act 2015 even if
the person was not a juvenile on the date of
commencement of the said Act and since
provisions of the Act 1986 are similar to the
provisions of the Act 2015 , accordingly the
appropriate punishment would be fine. (Para
37, 40, 41, 42, 44, 52, 53, 64, 65, 67)

Accordingly,
the
appeal
of
surviving
appellant No. 7 (Saleem) is allowed
whereas, the appeal of appellant No. 5
(Brijendra Singh) is partly allowed. (E-3)

Judgements/ Case law relied upon:-

1. Shivjee Singh & ors. Vs St. of Bih. (2008) 11
SCC 631

2. Roy Fernades Vs St. of Goa & ors, (2012) 3
SCC 221

3. Ashok Kumar Vs St. of M.P (Spl. Leave to
Appeal (Crl.) No.643 of 2020)

4. Jitendra Singh @ Babbu Singh Vs St. of
U.P.(2013) 11 SC 193

(Delivered by Hon'ble Sameer Jain, J.)

1. The present appeal was filed by
seven appellants. The appeal of appellant
no.1 (Harnath Singh); appellant no.2
(Vishwa Nath Singh); appellant no.3
(Shivnath
Singh);
appellant
no.4
(Raghvendra Singh) and appellant no.6
(Aditya Singh) has already been abated, on
account of their deaths, vide order dated
23.12.2015.
516 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The appeal of appellant no.5
(Brijendra Singh) and appellant no.7
(Saleem) survives. Therefore, by way of
present judgment, we will decide the appeal
of appellant no.5 (Brijendra Singh) and
appellant no.7 (Saleem) the surviving
appellants.

3. Appellant no.5 (Brijendra Singh)
and appellant no.7 (Saleem) have been
convicted vide judgment and order dated
29.9.1983 passed by 2nd Additional
Sessions Judge, Farrukhabad in Sessions
Trial No.210 of 1981(State Vs. Harnath
Singh and others) under Sections 302/149
IPC and under Sections 147 and 323 IPC
and awarded life imprisonment for offences
under Sections 302/149 IPC; and six
months rigorous imprisonment for offence
under Sections 147 and 323 IPC.

4. The case of the prosecution in
nutshell is that on 22.7.1980 at about 9.30
AM Kanchan Singh(PW-1) lodged FIR of
the present case against appellant no.5
(Brijendra Singh) and appellant no.7
(Saleem) and five other co-accused persons
at Police Station Kannauj, under Sections
147,148,149, 307, 323 and 302 IPC,
District Farrukhabad vide Case Crime No.
395 of 1980.

5. As per the FIR, on 22.7.1980 at
about 7.00 AM in the morning when
nephew of Kanchan Singh (the informant)
(PW-1), namely, Dhirendra Singh, was
returning back after attending nature's call,
the appellant no.5 (Brijendra Singh) and
appellant no.7 (Saleem) along with five
other co-accused persons exhorted him and
co-accused
Harnath
Singh
fired
at
Dhirendra Singh from his licensed gun
whereas co-accused Aditya Singh opened
fire from his country made pistol, which hit
Rajendra (PW-2), the son of informant. In
the incident, Dhirendra Singh, nephew of
the informant Kanchan Singh (PW-1), died
at spot. The above incident is said to have
taken place due to long standing enmity
between both the parties. In the FIR it is
further stated that number of cases of civil
and criminal nature were pending in the
court between the parties.

6. According to the FIR, appellant
no.5 (Brijendra Singh) and appellant no.7
(Saleem), who were armed with lathies,
along with co-accused Shiv Nath Singh,
Vishwa Nath Singh and Raghvendra Singh,
also wielded their lathies. It is further
mentioned in the FIR that after the incident
accused persons entered the house of coaccused Shiv Nath Singh and bolted it from
inside, which was surrounded by villagers.

7. After the FIR, the Police arrived at
the spot and arrested appellant no.5
(Brijendra Singh) along with co-accused
Harnath Singh, Vishwa Nath Singh, Shiv
Nath Singh, Raghvendra Singh and Aditya
Singh from the house of co-accused Shiv
Nath Singh. Appellant no.7 (Saleem),
however, could not be arrested as he was
not found there. At the time of arrest
licensed gun of Harnath Singh was also
recovered but country made pistol allegedly
used by Aditya Singh could not be
recovered.

8. During investigation, Investigating
Officer
prepared
recovery
memo
of
licensed gun and cartridges (Ext.Ka.18 and
Ext. Ka.23). The Investigating Officer also
prepared recovery memo of blood stained
shirt of injured Rajendra Singh (PW-2)
(Ext. Ka-24) and he also prepared recovery
memo of blood stained soil (Ext.Ka.25).
Injured Mahipal Singh (not examined),
Kanchan Singh (PW-1) and Rajendra Singh
(PW-2) were medically examined at
1 All. Harnath Singh & Ors. Vs. State of U.P.
517
Primary
Health
Centre,
Saray
Mira,
Kannauj,
District
Farrukhabad
on
22.7.1980 between 4.00 PM to 4.30 PM
and their injury reports were exhibited as
Ext.Ka.6,
Ext.Ka.7
and
Ext.Ka.8
respectively. The post mortem of the body
of
deceased
Dhirendra
Singh
was
conducted on 23.7.1980 at about 3.45 PM
(Ext.
Ka.5)
and
after
investigation,
Investigating Officer submitted charge
sheet against surviving appellant no.5
(Brijendra Singh) and appellant no.7
(Saleem) and other co-accused persons,
namely, Harnath Singh, Vishwa Nath
Singh, Shivnath Singh, Raghvendra Singh
and Aditya Singh on 9.8.1980 under
Sections 147, 148, 149, 307, 323 and 302
IPC. After submission of charge sheet, the
case was committed to the court of session
and trial court framed charges against
appellant no.5 (Brijendra Singh) and
appellant no.7 (Saleem) for offences under
Sections 302 read with 149 PC, Section
147 IPC and Sections 323/149 IPC. Both
the appellants refused to plead guilty and
claimed trial.

9. During trial, prosecution examined
nine witnesses. Out of nine witnesses, two
witnesses,
namely,
Kanchan
Singh
(informant) (PW-1) and Rajendra Singh
(PW-2) were witnesses of facts and rest are
formal witnesses.

10. The trial court convicted appellant
no.5 (Brijendra Singh) and appellant no.7
(Saleem) for offences under Sections
302/149 IPC, 323 and 147 IPC along with
other co-accused persons and sentenced
them as above.

11. We have heard Sri Vinay Saran,
learned Senior Advocate, assisted by Sri
Pradeep Kumar Mishra, learned counsel for
the
surviving
appellants;
and
Sri
H.M.B.Sinha and Sri Amit Sinha, learned
AGAs, for the State and have carefully
perused the entire evidence on record.

12. Learned counsel for the surviving
appellants contended that although in the FIR
as many as six eye witnesses were nominated
but during investigation only two witnesses,
Kanchan Singh (PW-1) (informant) and
Rajendra Singh (PW-2) were examined and
rest of the eye witnesses including one of the
persons injured (Mahipal Singh) were not
examined, which casts a serious doubt on the
prosecution case. He further contended that it
appears from the record that PW-1 (the
informant) (Kanchan Singh) was not present
at the spot and appellants were implicated
due to long standing enmity and in fact the
evidence produced by the prosecution is not
of such nature on the basis of which
surviving appellants, namely, Brijendra Singh
(appellant no.5) and Saleem (appellant no.7),
could be convicted under Section 302 IPC
with the aid of Section 149 IPC as
prosecution failed to prove the formation of
unlawful assembly as well as its common
object, which are essential ingredients and
must be proved before convicting a person
with the aid of Section 149 IPC. He submits
that in absence of necessary ingredients of an
unlawful assembly, the evidence on record
should be analysed to ascertain the individual
act of the surviving appellants. As there is no
evidence on record, who caused lathi blow to
whom, injured Mahipal having not been
examined and injury of Kanchan Singh (PW1) is a result of friction therefore, both the
surviving appellants can not even be
convicted under Section 323 IPC.

13. Learned defence counsel further
contended that appellant no.7, namely,
Saleem
is
neither
related
to
other
518 INDIAN LAW REPORTS ALLAHABAD SERIES
appellants, who were of the same family,
nor was arrested from the house of coaccused Shivnath Singh from where rest of
accused persons were arrested, therefore,
his participation in the incident is highly
doubtful
especially
when,
as
per
prosecution case, all the accused persons
including Saleem (appellant no.7) after
commission of the crime entered the house
of co-accused Shivnath Singh to protect
themselves from the surrounding villagers.
Further, there is no evidence on record,
which can show that Saleem (appellant
no.7) managed to escape either from the
house of Shivnath Singh or from the spot.
Therefore, he has been falsely implicated in
the present case and should be acquitted.

14. Per contra, learned AGA
contended that all the accused persons
including
the
surviving
appellants
participated in the incident, which resulted
in the death of Dhirendra Singh; and
surviving appellants, namely, Brijendra
Singh
(appellant
no.5)
and
Saleem
(appellant no.7), also used lathies during
the incident along with other co-accused
persons, therefore, their conviction under
Sections 302/149 and under Sections 323
and 147 IPC is justified and they, as a
whole, formed an unlawful assembly with a
common object.

Discussion of prosecution evidence:

15. Before discussing the prosecution
evidence and evaluating the arguments
advanced by both sides, it is necessary to
examine in brief the prosecution evidence
adduced by the prosecution during trial.

16. The prosecution firstly examined
PW-1(Kanchan
Singh),
who
is
the
informant of the case. As per PW-1
(Kanchan Singh) a long standing enmity
existed between both sides. The deceased
Dhirendra Singh was his real nephew. On
22.7.1980, at about 7.00 AM, when he
along with his son Rajendra Singh (PW-2)
were going to visit their fields, they heard
shouts and shrieks, when they arrived there,
they saw Dhirendra Singh (deceased) was
standing in the open field of Fatte Lal
Katiyar and accused persons, namely,
Harnath Singh, Shivnath Singh, Vishwa
Nath Singh, Aditya Singh, Raghvendra
Singh and Brijendra Singh (surviving
appellant no.5) and Saleem (surviving
appellant no.7) standing near the door of
the house of Shiv Nath Singh. Harnath
Singh held a licensed gun; Aditya Singh
held a country made pistol whereas
remaining five accused persons including
the surviving appellants held lathies. All
the accused persons were abusing his
nephew Dhirendra Singh. Harnath Singh
opened fire from his gun upon Dhirendra
Singh, which hit him. He fell down in the
field of Fatte Lal Katiyar and died. PW-1
further stated that co-accused Aditya Singh
also opened fire from his country made
pistol, which hit Rajendra Singh (PW-2)
whereas rest of accused persons used
lathies, which caused injuries to Rajendra
Singh
(PW-2),
Mahipal
Singh
(not
examined) and to him (PW-1). This witness
proved the clothes worn by deceased
Dhirendra Singh, which were exhibited as
Ext. 1 and Ext.2; and the shirt worn by
Rajendra Singh (injured)(PW-2) which was
marked, Ext.3. PW-1 also proved FIR as
Ext.Ka.16.

17. PW-1 in his cross-examination
stated that only two gun shots were fired,
one from the gun of co-accused, Harnath
Singh and the other from the country made
pistol carried by co-accused Aditya Singh.
First gun shot hit Dhirendra Singh.
Thereafter, Aditya Singh opened fire from
his country made pistol and after that,
1 All. Harnath Singh & Ors. Vs. State of U.P.
519
surviving appellants and three others, who
were having lathies, gave a single lathi
blow.

18. PW-1 also stated that his medical
was conducted at Kannauj Hospital on the
same day of incident at about 4.00 P.M.
and from the Hospital, he went to Makkoo
Lal and Ayodhya Prasad Firm where he
was working as a servant and next day, he
returned back to his village. PW-1 in his
cross-examination stated that when coaccused Harnath Singh and Aditya Singh
opened fire then the surviving appellants
Brijendra Singh (appellant no.5) and
Saleem (appellant no.7) were about 5-6
steps away from the co-accused persons,
who opened fire. He further stated that lathi
was used immediately after the fire but he
was unable to state as to whose lathi caused
injury to whom.

19. PW-2 (Rajendra Singh) is one of
the injured and son of the informant,
Kanchan Singh (PW-1). He also reiterated
the same version as narrated by his father
PW-1 (Kanchan Singh). PW-2 also stated
that firstly Harnath Singh opened fire from
his gun and thereafter Aditya Singh opened
fire from country made pistol and thereafter
accused persons including the surviving
appellants ran towards him and his father
and used their lathies. PW-2 also stated that
after the incident all the accused persons
including appellant no.7 entered the house
of co-accused Shiv Nath Singh from where,
except appellant no.7 (Saleem) were
arrested by the Police. He also stated that
when they entered the house of accused
Shiv Nath Singh, his house was surrounded
by the villagers. PW-2 could not state that
who caused lathi injuries to whom.

20. PW-3, Dr. B.P.Bhatnagar,
Medical
Officer,
District
Hospital
Fatehgarh, who conducted post mortem
(Ext.Ka.5) of deceased (Dhirendra Singh),
on 23.7.1980, at about 3.45 PM, found
following injuries on his body:

1. 6 gun shot wound of entry in
an area of 3"x2.5inch on the middle of
chest
anterior
aspect
each
measured
1/4"x1/4"x chest cavity deep. Margins
inverted.

2. Abrasion 3/4x1/4 inch on the
right side chest 2x2" below right nipple at
5'O Clock position.

21. According to PW-3, Dhirendra
Singh (deceased) died about 1-1/2 day
before. PW-3 proved the post mortem
report as Ext. Ka.5. PW-3 stated deceased
died due to shock and haemorrhage as a
result of ante mortem injury.

22. PW-4 is Dr. J.C.Harsh, Medical
Officer, Primary Health Centre, Kamalganj.
He stated on 22.7.1980 he was posted at
Medical Officer
at PHC, Saraymira,
Kannauj and at 4.00 PM he examined
Mahipal Singh and found following injuries
on his body:

"1.Lacerated wound: 1cm x 0.5
cm x scalp deep left side head 4.5cm above
left ear, bleeding.

2.Traumatic swelling 1cm x1cm
left side face 4 cm away from left ear.

Opinion:- Injury No.1 &2 caused
by blunt weapon, simple in nature and
about half day in duration."
520 INDIAN LAW REPORTS ALLAHABAD SERIES

23. PW-4 on the same day also
examined Kanchan Singh (the informant)
(PW-1) at about 4.15 PM and found single
abrasion 1cmx0.5 cm on inner side left
thigh 11 cm above left knee joint.

According to him, injury was
caused by friction, simple in nature and
about half day in duration.

24. Dr. J.C.Harsh (PW-4) also
examined Rajendra Singh (PW-2) on
22.7.1980 at about 4.30 PM and found
following injuries on his body:

(1) "Contusion: 5 cm x2cm on left
foot, 4cm below from left ankle joint, radish
in colour.

(2) Abrasion:2cmx1cm on right
shoulder region 4.5cm below from right
clavicle.

(3) Abrasion: 1cm x.5cm on right
side chest. 6 cm away from right nipple.

(4) One Gun short would of entry
1/10"x1/10"x skin deep on left side chest
2cm x below left clavicle blood clotted.

(5) One gun shot wound of entry
1/10" x x1/10" x skin deep on right side
chest.5cm above right nipple, blood clotted.

Opinion:Injury no.1 due to blunt
weapon. Injury Nos. 2 & 3 due to fraction
and injury nos. 4&5 due to fire arm, simple
in nature and half day in duration.

25. PW-4 proved injury reports of
Mahipal Singh(not examined), Kanchan Singh
(the informant) (PW-1) and Rajendra Singh
(PW-2) which were exhibited as Ext.Ka-6,
Ext.Ka-7 and Ext.Ka-8 respectively.

PW-4 in his cross-examination
stated that the injury sustained by Kanchan
Singh (the informant) (PW-1) cannot be
caused by lathi and this injury may be self
inflicted one.

26. PW-5 (Satkar Singh) is a
Constable. He stated that on 22.7.1980 he
was posted at Police Station Kannauj and
he received the body of deceased Dhirendra
Singh in a sealed condition at about 1.15
PM. He along with Constable Maharaj
Singh brought the dead body to Fatehgarh
on a tractor and it was handed over to the
Doctor for post mortem at 2.00 PM on
23.7.1980.

PW-5 (Satkar Singh) in his crossexamination stated that when Police arrived
in the village then, at that time, the accused
persons were inside the house but nobody
surrounded the house though several
persons were there at the door.

27. PW-6 (Ram Asrey Pandey) is the
Junior Scientist Officer, Forensic Lab,
Lucknow, U.P. This witness is a Forensic
Expert and provided evidence in respect of
gun used by co-accused Harnath Singh and
the cartridges collected from the spot.
Therefore, this witness is of no concern for
the surviving appellants, who were with
lathies only. Thus for deciding the present
appeal, the testimony of PW-6 (Ram Asrey
Pandey) is not relevant.

28. PW-8 is SI Narsingh Dayal. He
stated that in September, 1980 he was
posted as SI at Sadar Malkhana, Fatehgarh.
According to him on 5.9.1980 the articles
related to the present case were deposited
and on 9.9.1980 three sealed packets were
sent for chemical analysis to Agra through
Constable
Hanuman
Prasad
and
on
1 All. Harnath Singh & Ors. Vs. State of U.P.
521
11.9.1980 one sealed packet was sent to
Lucknow for analysis by a ballistic expert.

29. PW-9 is Sri K.N.Singh, SI. He is
the Investigating Officer of the present
case. He stated that in July 1980 he was
posted as SI at Police Station Kannauj and
on 22.7.1980 the chik report of the present
case was prepared by H.M.Phool Singh. He
proved chik report (Ext.Ka.16) and the GD
report no.5 as Ext. Ka.17. He stated
H.M.Phool
Singh
had
died.
PW-9
(K.N.Singh) stated that he arrived at the
spot on 22.7.1980 and arrested co-accused
Harnath Singh, Shivnath Singh, Brijendra
Singh, Raghvendra Singh, Aditya Singh
and Vishwa Nath Singh from the house of
co-accused
Shivnath
Singh
whereas
accused Saleem (appellant no.7) had
escaped from the spot. He recovered the
licensed gun from the possession of
Harnath Singh and upon unloading the gun
he found one live cartridge. The recovery
memo of gun and live cartridge prepared by
him was proved as Ext. Ka.18. He proved
material Ext.11 and Ext.12, i.e., gun and
live cartridge. This witness further stated
that inquest report (panchayatnama) of the
body of Dhirendra Singh was prepared and
body
was
sent
for
post
mortem
examination. He proved the inquest report
(panchayatnama) as Ext.Ka-19. He also
stated that he did the spot inspection and
the site plan prepared by him on the
pointing out of the informant (Kanchan
Singh) (PW-1) was proved as Ext.Ka.26.

30.

The
Investigating
Officer
(K.N.Singh)
(PW-9)
in
his
crossexamination stated that the accused persons
opened the door without offering resistance
and that he did not have to use force. He
further stated that although he recovered
the gun from co-accused Harnath Singh but
he could not recover country made
pistol allegedly used by co-accused Aditya
Singh. He further stated that none of the
witnesses informed him that co-accused
Saleem (surviving appellant no.7) had
managed to escape from the spot.

31. After recording the statement of
prosecution witnesses, trial court recorded
the statements of the accused including the
surviving
appellants,
Brijendra
Singh
(appellant no.5) and Saleem (appellant
no.7) under Section 313 Cr.P.C. and,
thereafter, on the basis of evidence adduced
by the prosecution, convicted the surviving
appellants amongst others under Sections
302/149 IPC and under Sections 323/147
IPC.

Analysis:

32. First, we deal with the case of
Saleem (appellant no.7). As per the
prosecution case mentioned in the FIR as
well as narrated by the witnesses of facts,
namely,
Kanchan
Singh
(the
informant)(PW-1) and Rajendra Singh
(PW-2), appellant no.7 (Saleem) was also
involved in the present case along with
other six remaining accused persons. It is
the case of the prosecution since the
beginning that after commission of the
offence, Saleem (appellant no.7) along with
other accused entered the house of coaccused Shivnath Singh (appellant no.3) to
hide and that the villagers surrounded the
house of Shiv Nath Singh. This indicates
that there was no scope for Saleem
(appellant no.7) to escape from the house
of co-accused Shiv Nath Singh (appellant
no.3).

33. Prosecution evidence further
shows that when, after the FIR, the police
522 INDIAN LAW REPORTS ALLAHABAD SERIES
arrived then all the accused persons were
arrested from the house of co-accused
Shivnath Singh except appellant no.7
(Saleem)) and their arrest could be made
after the door of the house of co-accused
Shivnath Singh was opened.

34.

The
Investigating
Officer,
K.N.Singh (PW-9) stated that he could not
find Saleem (appellant no.7) in the house of
co-accused Shivnath Singh and that he
managed to escape. But there is no
evidence on record on the basis of which it
can be said that Saleem (appellant no.7)
managed to escape from the house of coaccused Shivnath Singh. Non-arrest of
Saleem (appellant no.7) from the house of
co-accused Shivnath Singh creates doubt
about his presence and involvement in
commission of the present crime as all the
other remaining six accused persons were
arrested from the house of Shiv Nath
Singh. Moreover, Saleem (appellant no.7)
is not related to other accused persons.
Further, as he was not arrested from where
all other accused persons were arrested in
spite of the fact that the house of Shiv Nath
Singh was surrounded by the villagers and
there was no chance for his escape from
there, would suggest that he was not with
the other accused as part of the alleged
unlawful assembly.

35. The testimony of PW-1, Kanchan
Singh and PW-2, Rajendra Singh in respect
of Saleem (appellant no.7), therefore, does
not inspire confidence. Hence, in our
considered view, benefit of doubt should be
extended in favour of Saleem (appellant
no.7) to hold that he was not involved in
commission of the present crime.

36. As both the surviving appellants,
namely, Brijendra Singh (appellant no.5)
and Saleem (appellant no.7) were convicted
by the trial court under Section 302 IPC
with the aid of Section 149 IPC, we now
proceed to examine whether they formed
part of an unlawful assembly and could be
convicted with the aid of Section 149 IPC.

The Section 149 IPC reads as
follows:

"149.
Every
member
of
unlawful assembly guilty of offence
committed in prosecution of common
object.--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 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."

37. As per Section 149 IPC to convict
a person with the aid of this Section, it is
necessary
to
prove
the
following
ingredients; namely, (1) the offence is
committed by any member of an unlawful
assembly; and (2) the offence must be
committed in prosecution of the common
object of an unlawful assembly; or such as
the members of that assembly knew to be
likely to be committed in prosecution of
that object.

38. Section 141 IPC defines unlawful
assembly and, according to Section 141
IPC, an assembly of five or more persons is
designated an "unlawful assembly", if the
common object of the persons composing
that assembly is any one or more of those
specified in that Section.

39.
In
the present
case,
the
prosecution case is that co-accused Harnath
1 All. Harnath Singh & Ors. Vs. State of U.P.
523
Singh opened fire upon Dhirendra Singh,
who was standing in the open field of Fatte
Lal Katiyar; after that, co-accused Aditya
Singh opened fire through his country
made pistol. Following that, surviving
appellants,
namely,
Birendra
Singh
(appellant no. 5) and Saleem (appellant
No.7) started hurling their lathies along
with other accused, who also had lathies.
Admittedly, till both gun shots were fired,
surviving appellants were standing in front
of the house of co-accused Shivnath Singh
and had not participated in causing any
injury either to deceased (Dhirendra Singh)
or to injured Rajendra Singh (PW-2). The
allegation against them is that after two
fires were made, they started using their
lathies. From this, it cannot be said that
they shared the common object with the
other accused, who caused fire arm injuries
to the deceased and the injured Rajendra
Singh (PW-2). The role of causing fire arm
injuries to Dhirendra Singh (the deceased)
is specifically attributed to co-accused
Harnath Singh and the role of causing fire
arm injury to injured Rajendra Singh (PW2) is attributed to accused Aditya Singh.

40. What is now to be examined is
whether the surviving appellants were part
of the unlawful assembly which had a
common object of causing injury to the
deceased. At this stage, we may notice that
the accused were standing in front of the
door of the house of co-accused Shiv Nath
Singh, as per the prosecution case, and the
deceased was standing on the field of one
Fatte Lal. Accused persons were hurling
abuses at Dhirendra from a distance of 1314 paces. Upon hearing the abuses, PW-1
and others arrived at the spot. Then the
witnesses
saw
co-accused
Har
Nath
pointing gun at the deceased and coaccused Aditya holding pistol in his hand.
PW-1 in paragraph 12 of his crossexamination, held on 14.08.2012, stated
that at that time he did not expect that the
accused would use their weapon and,
therefore, the complainant party was
unarmed. But soon thereafter, co-accused
Harnath moved ahead from the door of his
house and from a distance of 7-8 paces
fired at the deceased; and, thereafter,
Aditya fired. Till then, there was nothing
from which it could be held that all the
accused persons had a common object to
cause injury to the deceased. It appears that
when, hot words were exchanged, on
account of previous enmity, co-accused
fired at the deceased. The co-accused
persons alleged to be armed with lathi, only
joined when the shots had already been
fired. Thus, in our considered view,
keeping in mind that all the accused were
stated to be standing in front of their own
house and not having gone as a group of
persons, armed, to another place to commit
an offence, they cannot be said to be part of
an unlawful assembly with a common
object, at the stage, when the gun shots
were fired.

41. The Supreme Court in the case of
Shivjee Singh and others Vs. State of
Bihar reported in (2008) 11 SCC 631
discussed the import of the words 'object'
and 'common' used in Section 149 IPC. The
relevant portion, contained in paragraph
no.-10 is as follows:-

"............The word object' means
the purpose or design and, in order to make
it `common', it must be shared by all. In
other words, the object should be common
to the persons, who compose the assembly,
that is to say, they should all be aware of it
and concur in it. A common object may be
formed by express agreement after mutual
524 INDIAN LAW REPORTS ALLAHABAD SERIES
consultation, but that is by no means The
word `object' means the purpose or design
and, in order to make it `common', it must
be shared by all. In other words, the object
should be common to the persons, who
compose the assembly, that is to say, they
should all be aware of it and concur in it. A
common object may be formed by express
agreement after mutual consultation, but
that is by no means necessary. It may be
formed at any stage by all or a few
members of the assembly and the other
members may just join and adopt it. Once
formed, it need not continue to be the same.
It may be modified or altered or abandoned
at any stage."

Further, in the same paragraph
the Apex Court held:

"The expression in prosecution of
common object' as appearing in Section 149
have to be strictly construed as equivalent to
`in order to attain the common object'. It must
be immediately connected with the common
object by virtue of the nature of the object.
There must be community of object and the
object may exist only up to a particular stage,
and not thereafter. Members of an unlawful
assembly may have community of object up
to certain point beyond which they may differ
in their objects and the knowledge, possessed
by each member of what is likely to be
committed in prosecution of their common
object may vary not only according to the
information at his command, but also
according to the extent to which he shares the
community of object, and as a consequence
of this the effect of Section 149, IPC may be
different on different members of the same
assembly."

Thus, it is clear from the
aforesaid decision that members of an
unlawful assembly may have community of
object upto the certain point of time and not
beyond that.

42. In the present case, in the context
of the prosecution evidence led, it cannot
with certitude be held that the common
object of the assembly was either to
commit the murder of Dhirendra Singh (the
deceased) or to cause such bodily injuries
to him or to anybody else that may result in
death because the accused persons did not
move as a group to assault the victims, the
accused were in front of their own house
and the incident occurred after exchange of
hot words, when co-accused Har Nath
Singh went ahead, perhaps in the heat of
the moment, to fire at the deceased which,
in our view, was his individual act and
cannot be attributed to be in furtherance of
the object of that group of accused persons.
Similarly, the shot fired by co-accused
Aditya Singh was his individual act.
Consequently, as the prosecution failed to
provide evidence to prove that accused
persons including the surviving appellants
held a common object to cause the death of
Dhirendra Singh or to cause any such
injury which in ordinary course of event
would have resulted in his death, the
surviving appellants cannot be held liable
for the murder of Dhirendra Singh under
Section 302 IPC with the aid of Section
149 IPC.

43. A similar question as to whether
the commission of murder by an individual
member of an unlawful assembly would
attract the provisions of Section 149 IPC,
came before Apex Court in the case of Roy
Fernades Vs. State of Goa and others,
reported in (2012) 3 SCC 221. Apex Court
after discussing the provisions of Sections
149 and 141 IPC observed that the sudden
action of one of the members of the
unlawful assembly cannot fall under the
1 All. Harnath Singh & Ors. Vs. State of U.P.
525
ambit of Section 149 IPC as the members
of unlawful assembly cannot be presumed
to knew that such an offence was likely to
be committed by any of its member.

44. In the present case, as we
observed earlier that there is no evidence
on record, which can prove the common
object of all the accused persons including
the surviving appellants to commit the
murder of deceased Dhirendra Singh,
neither the surviving appellants nor the
other co-accused persons, except Harnath
Singh, could have had knowledge or
awareness that Harnath Singh would open
fire from his gun upon Dhirendra Singh.
Therefore,
in
these
prevailing
circumstances, the conviction of surviving
appellants,
namely,
Brijendra
Singh
(appellant no.5) and Saleem (appellant
no.7) under Section 302 IPC with the aid of
Section 149 IPC cannot be sustained.

45. At this stage, we may examine the
prosecution evidence from another angle as
to ascertain whether all the co-accused
persons were there together from before at
the door of the house of co-accused Shiv
Nath or some of them may have arrived
hearing the shouts or verbal exchanges
between the deceased and co-accused Har
Nath Singh. It is important to notice here
that according to PW-1, the eye witness,
and PW-2, the injured witness, both, in the
morning, had set out to go to their fields,
when they heard shouts, they went to the
spot and witnessed the incident and found
the accused and the deceased in a verbal
duel. If PW-1 and PW-2 could get drawn to
the scene of occurrence upon hearing
verbal duel, even the rest of the accused
persons could get collected with their
lathies but that by itself would not be
sufficient to infer that they shared common
object with the co-accused, who fired at
the deceased. From all these angles, the
conviction of surviving appellant cannot be
with the aid of Section 149 IPC.

46. Since we have already held that
the conviction of surviving appellants is
unsustainable with the aid of Section 149
IPC, now we will analyse and examine the
individual offence, if any, committed by
surviving appellants, namely, Brijendra
Singh
(appellant
no.5)
and
Saleem
(appellant no.7).

47. At this stage, we may notice that the
trial court also convicted them under Section
147 IPC along with Section 323 IPC. Thus,
we first deal with the conviction of surviving
appellants under Section 147 IPC.

48. Section 147 IPC provides
punishment for rioting and Section 146 IPC
defines the offence of rioting. As per
Section 146 IPC, whenever force or
violence is used by an unlawful assembly,
or by any member thereof, in prosecution
of the common object of such assembly,
every member of such assembly is guilty of
the offence of rioting.

49. In the present case there are three
stages of the entire incident:-

(A) Altercation, Followed by shot
fired by co-accused Harnath Singh at the
deceased Dhirendra Singh resulting in his
death;

(B) Shot fired by co-accused
Aditya Singh from his country made pistol
causing injury to Rajendra Singh (PW-2); and

(C) After both the shots were
fired, lathi was wielded by remaining five
526 INDIAN LAW REPORTS ALLAHABAD SERIES
accused including the surviving appellants,
namely, Brijendra Singh (appellant no.5)
and Saleem(appellant no.7).

50. As we have already formed an
opinion that common object cannot be
attributed to surviving appellants, namely,
Brijendra Singh (appellant no.