# Jawahar and others (In Jail) v. State of U.P

- **Citation:** (2005) 1 ILRA 146
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-09-01
- **Case number:** Criminal Appeal No. 1791 of 1981
- **Bench:** S. Rafat Alam, Mukteshwar Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jawahar-and-others-in-jail-v-state-of-u-p-40332
- **Pages:** 9

## Headnote

Indian Penal Code, Ss. 141, 149 and 302Constitution
under-Legality-Unlawful
assembly-Evidence
on
record
that
appellants reached scene of incident in a
group-They had common object to teach
a lession to deceased and his familyMoreover-They used their weapons and
take active part in commission of crimeHence, contention that provisions of S.
149 are not attracted.

Held: Para 40

The explanation to Section 141 provides
in clear words that an assembly which is
not unlawful when it assembled, may
subsequently
become
unlawful
assembly. In the instant case, there is
overwhelming evidence of the injured
and
the
eye
witnesses
that
the
appellants reached the scene of incident
in a group and they had a common
object to teach a lesson to Hriday Narain
and his family. Moreover, they used their
weapons
and
took
active
part
in
commission of the crime. In this view of
the matter, it is not possible for us to
accept the submission made on behalf of
the appellants that provisions of Section
149 I.P.C. are not attracted and A-2 to A5
(except
Jawahar)
could
not
be
convicted under Section 302 with the aid
of Section 149 I.P.C.
Case law discussed:
2004 SCC (Crl.) 1467
2004 SCC (Crl.) 469
2004 (1) JIC 263 (SC)
1995 SCC (Crl.) 993
1991 SCC (Crl.) 1042
1998 SCC (Crl.) 461
AIR 1965 SC 202
AIR 1979 SC 1230

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
146
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.09.2004

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE MUKTESHWAR PRASAD, J.

Criminal Appeal No. 1791 of 1981

Jawahar and others ...Appellants(In Jail)
Versus
State of U.P.

...Respondent

Counsel for the Appellants:
Sri K. Mohan
Sri R.C. Yadav
Sri Umesh Mohan
Sri O.N. Shukla
Sri S.P. Singh
Sri M.S. Yadav

Counsel for the Respondent:
A.G.A.

Indian Penal Code, Ss. 141, 149 and 302Constitution
under-Legality-Unlawful
assembly-Evidence
on
record
that
appellants reached scene of incident in a
group-They had common object to teach
a lession to deceased and his familyMoreover-They used their weapons and
take active part in commission of crimeHence, contention that provisions of S.
149 are not attracted.

Held: Para 40

The explanation to Section 141 provides
in clear words that an assembly which is
not unlawful when it assembled, may
subsequently
become
unlawful
assembly. In the instant case, there is
overwhelming evidence of the injured
and
the
eye
witnesses
that
the
appellants reached the scene of incident
in a group and they had a common
object to teach a lesson to Hriday Narain
and his family. Moreover, they used their
weapons
and
took
active
part
in
commission of the crime. In this view of
the matter, it is not possible for us to
accept the submission made on behalf of
the appellants that provisions of Section
149 I.P.C. are not attracted and A-2 to A5
(except
Jawahar)
could
not
be
convicted under Section 302 with the aid
of Section 149 I.P.C.
Case law discussed:
2004 SCC (Crl.) 1467
2004 SCC (Crl.) 469
2004 (1) JIC 263 (SC)
1995 SCC (Crl.) 993
1991 SCC (Crl.) 1042
1998 SCC (Crl.) 461
AIR 1965 SC 202
AIR 1979 SC 1230

(Delivered by Hon'ble Mukteshwar Prasad, J.)

1. Five accused Jawahar, Chhakauri,
Nankhoo, Ram Nath and Ram Chandra
have filed this appeal against the
judgment and order dated 7.8.1981 passed
by
Sri
D.C.
Srivastava,
the
then
Additional Sessions Judge, Gyanpur,
Varanasi whereby he convicted Jawahar
under Sections 148, 302 and 323/149
I.P.C. and sentenced him to suffer
rigorous imprisonment for a period of one
and half years, imprisonment for life and
six
months
rigorous
imprisonment
respectively there under. The remaining
four accused were convicted under
Sections 147, 323 and 302/149 I.P.C. and
were sentenced to undergo rigorous
imprisonment for a period of one year, six
months
and
imprisonment
for
life
respectively. All the sentences of five
accused were directed to run concurrently.

2. The relevant facts of the case
leading to the trial of the appellants are as
under:

Accused Jawahar and Chhakauri are
sons of accused Ram Nath. P.W.8, Smt.
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147
Lalti Devi is wife of P.W.6 Lalmani. The
parties are residents of village Prkshpur,
P.S. Bhadohi.

3. On 26.3.1979 at about 9-00 a.m.,
Smt. Lalti Devi accompanied by Smt.
Vidhya, wife of P.W.4 Chhabinath, had
gone to collect grass in the fields for the
cattle. Accused Nankhoo, son of Munni
Lal, and Jawahar, son of Ram Nath,
arrived there, passed indecent remarks
and caught hands of Smt. Lalti Devi. She
complained to her husband Lalmani in the
night at about 9-30 p.m.

4. Next day i.e. on 27.3.1979,
Nannkhoo was coming towards house of
Lalmani. He lodged protest regarding his
behaviour with his wife and slapped him
twice. Nankhoo returned home and
Lalmani went for weaving of carpet. This
incident caused annoyance to Nankhoo,
Jawahar and other members of his family.

5. On the same day at about 7-00
p.m., Mithai Lal along with Lalmani,
Hriday Narain, Chhabinath and Bajranji
were sitting at the door of Hriday Narain
and were talking to each other. In the
meantime, Jawahar armed with a Ballam
and the remaining four accused, named
above, having lathies in their hands
arrived there. They exhorted each other
that all were available at one place and
they had a golden chance to kill them and
teach a lesson. Accused Jawahar struck
his Ballam in the chest of Hriday Narain
who sustained grievous injuries and the
remaining four accused wielded their
lathies and caused injuries to Lalmani and
Chhabinath. Thereafter, Mithai Lal and
others picked up lathi-danda and female
members of the family raised alarm and
intervened. Jawahar and others sustained
injuries in the course of incident. On the
alarm raised, a number of villagers
arrived there and saw the incident.
Jawahar and others took to their heels.
Lalmani
and
Chhabinath
sustained
injuries and Hriday Narain succumbed to
his injuries on the spot.

6. P.W.7 Mithai Lal got a report of
the incident prepared by one Mewa Lal on
the
spot
and
affixed
his
thumb
impression. He accompanied by Lalmani
and Chhabinath took the dead body of
Hriday Narain to P.S. Bhadohi and on the
basis of his written report, P.W.3 Som
Nath Tiwari registered a case at crime no.
55 and made entry in the G.D. at serial no.
31.

7. After registration of the case, S.I.
Sarv Jit Mishra, the then S.O. took up
investigation and recorded the statement
of Mithai Lal, Chhabinath and Lalmani at
the police station.

8. S.I. Kailash Nath Tripathi
prepared inquest report and other papers
relevant for autopsy. He sent the dead
body of Hriday Narain to mortuary along
with constables Kashi Nath Ojha and
Madan Mohan Singh.

9. Both Lalmani and Chhabinath
were sent to Government Hospital,
Bhadohi for medical examination of their
injuries through constable Surendra Rai.

10. P.W.2 Dr. R.V. Singh, the then
Medical Officer of P.H.C, Bhadohi,
examined the injuries of Lalmani at 9-30
p.m. on 27.3.1979 and found one
lacerated wound over right parietal scalp,
10 cm. above right ear 1 cm. x 0.5 cm. x
skin deep fresh, bleeding present.
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11. In the opinion of Dr. Singh,
injury was caused by hard and blunt
object and was simple in nature and fresh.

12. On the same night at 9-48 p.m.
Dr. Singh further examined Chhabinath
and found one lacerated wound over
forehead 6 cm. above nasal root 1 cm. X
0.5 cm. X skin deep, bleeding present.

13. Dr. Singh opined that injury was
simple, fresh and was caused by hard and
blunt object.

14. P.W.1 Dr. K.N. Pandey
conducted post-mortem examination on
the dead body of Hriday Narain on
28.3.79 at 2-45 p.m. According to Dr.
Pandey, the deceased was about 35 years
old and had died about 16 to 20 hours
before. Rigor mortis was present in both
the limbs. Both eyes were closed.

Dr. Pandey found the following injuries:
(1) Punctured wound 2 cm. x 0.75
cm. x chest cavity deep over front of chest
(just over sternum) in between both
nipples,
direction
upwards
and
downwards. Margin of wound clean cut.
Direction of depth of wound of slightly
towards right then going inwards.
(2) Incised wound 0.75 cm. x 0.25
cm. x bone deep over medial aspect of
right lower leg, 11 cm. below right knee
joint. Direction upwards downwards.
Margin clean cut.

15. On internal examination, 5th rib
was found cut. Left lung was found
ruptured. In the opinion of doctor, death
of Hriday Narain was caused due to
ruptured lung and punctured heart and on
account
of
hemorrhage
and
shock
resulting from the injuries.

The investigating officer collected
blood-stained earth from the spot and
prepared
site-plan
on
28.3.79
after
inspection.
After
completing
investigation, he submitted charge sheet
against all the five assailants, named
above.

16. Accused Jawahar was charged
under Section 147, 148, 302 and 323/149
I.P.C. on 2.3.81.

Accused Chhakauri, Nankhoo, Ram
Nath and Ram Chandra were charged on
the same day under Sections 147, 148,
302/149 and 323 of the Penal Code. They
pleaded not guilty to the charges framed
against them and claimed to be tried.

17. At the trial, in order to establish
its
case
against
the
accused
the
prosecution examined P.W.1 Dr. K.N.
Pandey,
the
Medical
Officer,
who
conducted autopsy, P.W.2 Dr. R.V. Singh,
who examined the injuries of Lalmani and
Chhabinath. He further examined injuries
of Ram Nath, Jawahar and Chhakauri (all
the three accused) on the same night at
10-10, 10-20 and 10-30 p.m. respectively.
P.W.3 H.C. S. B. Tiwari, who proved chik
report and made entry in the G.D., P.W.4
Chhabinath, one of the injured, P.W.5
constable K.N. Ojha, who took the dead
body
to
mortuary
for
post-mortem
examination, P.W.6 Lalmani, another
injured, P.W.7 Mithai Lal, the informant
and one of the eye witnesses, P.W.8 Smt.
Lalti Devi, P.W. 9 S.I. K.N. Tripathi who
prepared inquest report and relevant
papers and P.W.10 S.I. Sarv Jit Mishra
I.O. of the case.

18. All the accused facing trial
pleaded their false implication in the case
on account of enmity and alleged that
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Hriday Narain, Lalmani, Chhabinath,
Mithai Lal, Jiudhan, Bhuidhan, Bajrangi
and Munna armed with lathies arrived at
the door of Jawahar and assaulted
Jawahar, Ram Nath and Chhakuri and
caused injuries to them and they in
exercise of their right of private defence
used lathies and the female inmates of the
house threw 'Faar' of the plough in
defence which caused injuries to Hriday
Narain. The other accused adopted the
statement given by Jawahar.

19. Accused examined D.W.1 Smt.
Chameli, wife of Jawahar, and D.W.2
constable Muin Ahmad, who proved chik
report (Ex- Ka-4) lodged by Ram
Chandra, one of the appellants, at P.S.
Bhadohi on the same night at 10-00 p.m.
Accused further got proved injury reports
of Ram Nath, Jawahar and Chhakauri by
Dr. R.V. Singh (P.W.2), which are (Exkha-1 to Ex-kha-3) respectively.

20. After close scrutiny of the entire
evidence on record led by the parties and
considering the submissions made on
their behalf, learned Judge found all the
five accused guilty and convicted and
sentenced them, as noted above.

21. Aggrieved by their conviction
and sentence, the accused came up in
appeal.

22. We have heard learned counsel
for the appellants and learned A.G.A. and
have perused the record also.

23. Learned counsel for the
appellants has assailed the impugned
judgment mainly on the ground that siteplan prepared by the I.O. does not support
the
prosecution
version
and
has
demolished the whole prosecution case.
He contended with vehemence that there
was, in fact, no motive on the part of the
appellants to commit the offences and in
any case there was very weak motive.
According to him, the possibility of
falsely implicating all the appellants in the
case cannot be ruled out and out of the
five appellants Jawahar, Ram Nath and
Chhakauri sustained injuries in the course
of incident and they all in exercise of their
right of private defence of person caused
injuries with lathies and the female
members of the family used 'Faar' which
caused injuries to Hriday Narain. It was
further submitted vehemently that there
was no unlawful assembly and as such,
the provisions of Section 149 I.P.C. are
not attracted and all the appellants could
not be convicted with the aid of Section
149 I.P.C.

Learned counsel for the appellants
has placed reliance on the following
decisions:
1. State of U.P. Vs. Ram Bahadur Singh
and others, 2004 Supreme Court Cases
(Cri.) 1467.
2. Boya T. Venkateswarlu and Others
Vs. State of A.P. , 2004 Supreme Court
Cases (Cri) 469.
3. Bhargavan @ others Vs. State of
Kerala, [2004 (1) JIC 263 (SC)].
4. Bharwad Jakshibhai Nagjibhai and
others Vs. State of Gujarat, 1995
Supreme Court Cases (Cri) 993.
5. Jharu and others Avadh Ram and
others Vs. State of Madhya Pradesh,
1991 Supreme Court Cases (Cri) 1042.
6. Sudhir Samanta Vs. State of W.B.
and another, 1998 Supreme Court Cases
(Cri) 461.

24. On the other hand, learned
Additional
Government
Advocate
supported the judgment under appeal and
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urged that the trial court rightly concluded
that the appellants were the aggressors
and took law in their hands and caused
death of Hriday Narain and assaulted
Lalmani and Chhabinath in the course of
same incident. According to him, the
appellants had a motive to commit the
crime in question and in view of
promptness in lodging the F.I.R. at the
police station there was no question of
falsely implicating any of the appellants
in the case instead of real assailants.
Consequently, the appeal is liable to be
dismissed.

25. Reliance has been placed by the
State Counsel on two decisions of the
Supreme Court in Masalti Vs. State of
Uttar Pradesh, A.I.R. 1965 Supreme
Court 202 (a judgment rendered by a
Bench of four Judges of the Court) and
Mannu and others Vs. State of Uttar
Pradesh, A.I.R. 1979 Supreme Court
1230.

26. We have given our anxious
consideration to the arguments advanced
on behalf of the parties and have perused
the decisions relied upon by them.

27. According to the prosecution
case, the impugned incident took place at
about 7-00 p.m. on 27.3.79 at the door of
Hriday Narain, the deceased. On the other
hand, A-1 (Jawahar) disclosed in his
statement that on the impugned date and
time Hriday Narain, Lalmani, Chhabinath,
Mithai Lal and others arrived at his door
and assaulted him, Ram Nath and
Chhakauri and they too wielded their
lathies in self-defence. Thus, we find that
the appellants came to the Court with a
cross version and they also lodged a
written report at the police station on the
same night at 10-00 p.m. which is ExKha-4 on record. It is, therefore, obvious
that incident in question took place on
27.3.79 at about 7-00 p.m.

28. Now we shall scrutinize the
evidence with a view to test whether the
trial Judge rightly held the appellants as
aggressors.

29. As mentioned above, the
prosecution examined ten witnesses in all
to prove its allegations. Out of which,
P.W.1 Dr. K.N. Pandey, P.W.2 Dr. R.V.
Singh, P.W.3 H.C. S.B. Tiwari, P.W.5
Constable Kashi Nath Ojha, P.W. 9 S.I.
K.N. Tripathi and P.W.10 S.I. Sarva Jit
Mishra
are
formal
witnesses.
The
prosecution
mainly
relied
on
the
testimony of P.W.4 Chhabinath and
P.W.6 Lalmani who were allegedly
assaulted and sustained injuries in the
course of same incident in which Hriday
Narain was done to death. P.W.7 Mithai
Lal and P.W.8 Smt. Lalti Devi claimed
themselves to be eye witnesses.

30. P.W. 8 Smt. Lalti Devi, wife of
Lalmani, testified in clear words that on
26.3.79 she accompanied by Smt. Vidhya
went to collect (Scrap) grass to the fields
where Nankhoo and Jawahar arrived and
passed indecent remarks. They caught her
hands and dragged her. She narrated this
incident to her husband in the night at
about 9-00 p.m. Next day, Nankhoo was
questioned
by
Lalmani
about
his
misconduct towards his wife and lodged
protest.
Nankhoo
became
angry
whereupon Lalmani slapped him. This
incident of slapping to Nankhoo by
Lalmani is said to be the motive of the
crime. It was, therefore, urged that motive
was very weak in this case and
prosecution did not come to the Court
with clean hands. First of all, it is
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1All] Jawahar and others V. State of U.P.
151
noteworthy that Smt. Lalti Devi was
cross-examined at length but she stood
successful
in
the
test
of
crossexamination. It is well settled that motive
is not a sine qua non for commission of a
crime. Moreover, where the prosecution
case rests on direct evidence of the
witnesses
the
motive
looses
its
significance. In the instant case, there was
a motive for the accused to commit the
crime and teach a lesson to Lalmani and
his family. In my opinion, the slapping to
Nankhoo at the hands of Lalmani publicly
must
have
caused
annoyance.
We,
therefore, hold that there was a motive for
the appellants to commit the offence.

31. According to the F.I.R. besides
the deceased Hriday Narain, Lalmani and
Chhabinath were also sitting there where
Jawahar pierced his Ballam in the chest of
Hriday
Narain.
Both
Lalmani
and
Chhabinath were also given lathi blows
by A-2 to A-4 who were having lathies in
their hands. We find from perusal of the
injury reports of Chhabinath and Lalmani
that both had lacerated wounds over
forehead and right parietal scalp. The
injuries of both were bleeding at the time
of examination by Dr. R.V. Singh who
examined them at 9-48 p.m. and 9-38
p.m. on the same night. Keeping in mind
the nature and seat of injuries of both the
witnesses, we can say it safely that the
injuries could not be manufactured or
self-suffered only with a view to falsely
implicate the appellants/enemies. Besides
the medical evidence on record, P.W.4
Chhabinath
fully
supported
the
prosecution story and testified that the
deceased was his cousin and they all were
sitting at the door of Hriday Narain on the
impugned date. According to Chhabinath,
A-1 (Jawahar) exhorted his associates to
kill and teach a lesson as they were
present at one place. Accused Jawahar
himself struck his Ballam in the chest of
Hriday Narain and the remaining accused
used their lathies and caused injuries to
Chhabinath
and
Lalmani.
P.W.4
Chhabinath and P.W.6 Lalmani picked up
lathies and used in their self-defence. The
witnesses tried to apprehend Hriday
Narain whereupon all the assailants ran
away and Hriday Narain succumbed to his
injuries. It is noteworthy that the
statements of Lalmani and Chhabinath to
the effect that they too used lathies and
caused injuries to Jawahar and others in
the course of the same incident find place
in the written report handed over to the
police by Mithai Lal.

32. P.W.6 Lalmani corroborated the
testimony of Chhabinath on all material
points and supported his wife on the point
of motive. He testified that his wife
narrated the incident to him in the night
regarding
teasing
by
Jawahar
and
Nankhoo and he next day gave two slaps
to
Nankhoo.
He
too
disclosed
in
unambiguous words that A-1 pierced his
Ballam in the chest of Hriday Narain and
the appellants 2 to 4 having lathies
assaulted him and Chhabinath and caused
injuries. He admitted in very clear words
in cross-examination that Ram Nath,
Jawahar and Chhakauri had sustained
injuries in the course of incident. Both
Lalmani and Chhabinath were crossexamined extensively on behalf of the
accused but nothing could be elicited in
their cross-examinations to disbelieve
their testimony. They stated categorically
that it were the appellants who arrived at
the door of Hriday Narain after forming
an
unlawful
assembly
and
at
the
exhortation of Jawahar they committed
murder of Hriday Narain and caused
injuries to Lalmani and Chhabinath. They
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
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totally denied that they and another
attacked upon the appellants. They
asserted that no brick batting was done by
the female member of the family.

33. P.W.7 Mithai Lal further
supported the prosecution story and
corroborated the testimony of the injured.
P.W.7 Mithai Lal was also crossexamined at length but his testimony was
not shaken. There are a few minor
discrepancies in the statement of both the
injured
and
Mithai
Lal
but
the
discrepancies are not fatal at all as they
are not on material points.

34. A perusal of the site-plan shows
that Hriday Narain was dragged by the
appellants and was left near the house of
Jawahar where he died. It was urged that
the I.O. found no blood marks between
the houses of Hriday Narain and Jawahar.
It is noteworthy that the I.O. visited the
scene of occurrence on 28.3.79 and after
inspection prepared site-plan. It was
month of March. Moreover, the villagers
must have been using the village pathway
throughout the night and day and as such,
the I.O. found no blood marks. The I.O.
had collected blood-stained earth from the
scene of incident and prepared a Fard
also. He collected blood-stained earth
from places shown at A & B of the siteplan.

35. As pointed out above, the
incident in question took place at about 700 p.m. in which Hriday Narain was
killed on the spot and two persons
Lalmani
and
Chhabinath
sustained
injuries. The dead body was also taken to
the police station by the informant who
handed over a written report at P.S.
Bhadohi on the same night at 9.10 p.m. at
a distance of about six kilometers.
Therefore, in view of prompt F.I.R. by the
informant there was no time at all for any
consultation or deliberation and as such,
the possibility of falsely implicating any
of the appellants is ruled out.

36. In the instant case, we find no
inconsistency
between
the
medical
evidence and ocular testimony on record.
Moreover, there is no contradiction in the
testimony of the injured and the informant
who were subjected to lengthy crossexamination.

37. Learned counsel for the
appellants further submitted that A-1
(Jawahar) alone could be convicted under
Section 302 I.P.C. and other appellants
could not be convicted under Section 302
I.P.C. with the help of Section 149 I.P.C.
According to him, there was no unlawful
assembly and in any case the other
appellants did not know the common
object of the assembly that Hriday Narain
would be killed. He drew our attention to
paragraph-16 of the judgment rendered by
the Apex Court in Bhargavan case
(Supra). In Lalji Vs. State of U.P., 1989
(1) SCC 437, it was observed that
common object of the unlawful assembly
can be gathered from the nature of the
assembly, arms used by them and the
behaviour of the assembly at or before the
scene of occurrence. It is an inference to
be
deduced
from
the
facts
and
circumstances of each case. In State of
U.P. Vs. Dan Singh and others, JT 1997
(2) SC 149, it was observed that it is not
necessary for the prosecution to prove
which of the members of the unlawful
assembly did which or what act. The mere
presence in the unlawful assembly may
fasten vicariously criminal liability under
Section 149 I.P.C.
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38. There is a leading judgment of
the Supreme Court rendered by a Bench
of four Judges, reported in A.I.R. 1965
SC 202. It was held in Masalti's case
(Supra) that an assembly of five or more
persons actuated by, and entertaining one
or more of the common objects specified
by the five clauses of Section 141 is an
unlawful assembly. The crucial question
to determine in such a case is whether the
assembly consisted of five or more
persons and whether the said persons
entertained one or more of the common
objects as specified by Section 141. While
determining this question, it becomes
relevant to consider whether the assembly
consisted of some persons who were
merely passive witnesses and had joined
the assembly as a matter of idle curiosity
without
intending
to
entertain
the
common object of the assembly.

39. In a recent judgment delivered
by the Apex Court on 29.4.2004 in
Chanda and others Vs. State of U.P. and
another, 2004 AIR SCW 2954, it was
held that Section 149 I.P.C. consists of
two parts. Mere presence in an unlawful
assembly cannot render a person liable
unless there was a common object and he
was actuated by that common object and
that object is one of those set out in
Section 141. Where common object of an
unlawful assembly is not proved, the
accused persons cannot be convicted with
the help of Section 149 I.P.C. The crucial
question to determine is whether the
assembly consisted of five or more
persons and whether the said persons
entertained one or more of the common
objects, as specified in Section 141. It
cannot be laid down as a general
proposition of law that unless an overt act
is proved against a person, who is alleged
to be a member of unlawful assembly, it
cannot be said that he is a member of an
assembly. The only thing required is that
he should have understood that the
assembly was unlawful and was likely to
commit any of the acts, which fall within
the purview of Section 141 I.P.C.

40. We shall now scrutinize the
evidence on record with a view to find out
whether the appellants were rightly
convicted by the court below with the aid
of Section 149 I.P.C. in the light of the
aforesaid proposition of law enunciated
by the Apex Court. According to
appellants' learned counsel, there was no
unlawful assembly and the appellants did
not know the common object of the
assembly that Hriday Narain would be
killed. In view of the facts of the case and
evidence on record led by the prosecution
and the law laid down by the Supreme
Court, we are not inclined to accept this
contention. There is direct and reliable
evidence of two injured, the informant
and Smt. Lalti Devi also to the effect that
all the five accused armed with Ballam
and lathies arrived at the door of deceased
on the impugned date and they, on the
exhortation of Jawahar, committed the
crime. The law requires that the number
of assailants must be five or more and
such assembly of five or more persons
becomes
unlawful
assembly
when
common object of the person composing
that assembly is to commit the offences
described in Clause 1st to 5th of Section
141. The explanation to Section 141
provides in clear words that an assembly
which is not unlawful when it assembled,
may
subsequently
become
unlawful
assembly. In the instant case, there is
overwhelming evidence of the injured and
the eye witnesses that the appellants
reached the scene of incident in a group
and they had a common object to teach a
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
154
lesson to Hriday Narain and his family.
Moreover, they used their weapons and
took active part in commission of the
crime. In this view of the matter, it is not
possible for us to accept the submission
made on behalf of the appellants that
provisions of Section 149 I.P.C. are not
attracted and A-2 to A-5 (except Jawahar)
could not be convicted under Section 302
with the aid of Section 149 I.P.C.

41. On careful scrutiny of the entire
evidence on record, we are also of the
view that the prosecution succeeded in
bringing home the charges against the
appellants and, therefore, the conclusion
arrived at by the learned trial court is
liable to be upheld. We, therefore, hold
that this appeal is devoid of merit and is
liable to be dismissed.

42. The appeal fails and is hereby
dismissed. The conviction and sentence
recorded by the trial Judge are hereby
affirmed. The appellants are on bail.
Their bail is cancelled. They shall be
taken into custody to serve out the
sentences passed against them.

43. A copy of this judgment shall be
sent
to
the
court
concerned
for
compliance of the order. Compliance
report shall be submitted to this Court
within two months.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2004

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 52466 of 2003

Committee
of
Management,
Janta
Vidyalaya Samiti, Sahpau Mathura and
another

 ...Petitioners
Versus
The Deputy Registrar, Firms, Societies and
Chits, Agra U.P. & others ...Respondents

Counsel for the Petitioners:
Sri M.K. Tiwari

Counsel for the Respondents:
Sri Ashok Khare
Sri V.K. Agarwal
Sri Sanjay Mishra
Sri Digvijay Singh
S.C.

Societies Registration Act-Ss. 25 (1)
and-Dispute with regard to two riwal
elections, set up by parties must be
referred to Prescribed Authority within
one month-order deciding claim by Dy.
Registrar-held, without jurisdiction.

Held: Para 25 and 26

In the opinion of the Court in the facts
and circumstances of the case it is
established that there is a bona fide
dispute in respect of the two rival
elections of the office bearers of the
society and the Deputy Registrar could
not have decided the same on his own.

The
order
passed
by
the
Deputy
Registrar, Firms, Societies and Chits,
Agra, U.P. is wholly without jurisdiction.
The dispute with regard to the two rival
elections set up by the parties must
necessarily be referred by the Deputy
Registrar to the Prescribed Authority
within one month from the date a