# NAWABAU v. THE STATE OF utTAR PRADESH March 22, 1~74

- **Citation:** [1974] 3 S.C.R. 734
- **Court:** Supreme Court of India
- **Decided:** 1974
- **Case number:** Criminal Appeal No. 20 of 1971
- **Bench:** H. R. Khanna, P. K. GoSWAMI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nawabau-v-the-state-of-uttar-pradesh-march-22-1-74-6068
- **Pages:** 4

## Headnote

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 a 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 unlawful 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 a 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 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]
·
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.
·
B .. P. Sin11h. for the appellant.
D. P. Yniyal, R. Bai1a and O. P. Rana, for the respondent.

## Text

NAWABAU
v.
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 a 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 unlawful 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 a 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 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]
·
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.
·
B .. 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
NAWAB ALI v. U.P. STATE (Khanna,/.)
735
A
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.
ll
c
l>
_,
E
JC
'G
H
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 a talk in connection with a
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,
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
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 a distance of three miles from the
pl= of occurrence.
Report l,(a I was lodged at the police station
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 a 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
SUPRl!ME COURT Rl!PORTS
[1974] 3 S.C.R.
the aa;llSW were Present inside the house.
Nawab Ali appellant
A
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
B
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
C
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 a 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· a 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 a 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». a 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
D
E
F
G
!<AWAD ALI v. U.P. STATE (Kha1111a, /.)
737
A.
Mohd. Shafi and had thus ceased to be a member of the unlawful
\ ·
asse.nbly.
B
c
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 a 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_ a 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 a
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.
S.B.W.
AppeQ/ allowed.