1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 22 of 2002. Reserved on: 12-12-2008. Date of Decision: 18.12.2008. ____________________________________________________________ Niaz Deen and others. … Appellants Versus State of H.P. …. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?. Yes. For the appellants: Mr. N.K. Thakur, Advocate. For the respondent: Mr. Vikas Rathore, Deputy Advocate General. ____________________________________________________________ Surinder Singh,J . The appellants were held guilty and sentenced under Section 147, I.P.C. and separately under Section 323/149 of I.P.C. to imprisonment till the rising of the Court and also to pay a fine of rupees 1000/- each. The conviction and sentence has been assailed by the appellants in the present appeal on the ground that the learned trial Court did not appreciate the evidence on record in the right perspective and un-necessarily attached too much importance to the statement of the complainant and wrongly ignored the material contradictions. Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 Precisely, the case of the prosecution giving rise to the present appeal is that PW4 Complainant Nasiba Bibi and her husband PW3 Kura Deen and the appellants are Mohammedans’. Appellants belong to Sunni sect and the complainant party earlier also belonged to the same sect but later they joined Kadian Sect, thus the appellants nourished grudge against them. It is alleged that on 27-3-1999, at about 9.00 P.M, PW4 Nasiba Bibi and her husband Kura Deen (PW3) were in their village Dango. At about 9.00 P.M, the appellants are alleged to have formed unlawful assembly and in prosecution of their common object, started hurling abuses and threatened the complainant with dire consequences. PW4 Nasiba Bibi came out from her residence, appellant Gulam Mohammad asked her about the where-abouts of her husband. In the mean time, PW3 Kura Deen also came out. Appellant Gulam Mohammad picked up two brick bats and hurled it on Kura Deen causing injuries on his head and near his left eye. On sustaining bleeding injuries, he fell down. His wife Nasiba Bibi raised alarm by which Ram Murti, Joginder Singh and Sultan Deen got attracted and came there. On seeing them, the appellants escaped from the spot. Injured Kura Deen was brought to the Hospital and the statement of Nasiba Bibi was recorded under Section 154 of the Code of Criminal Procedure. Thereafter medical examination of Kura Deen was conducted. According to the Doctor, there was a fracture of the skull. The said injury was opined to be dangerous to life. As such, F.I.R. was registered under Section 147, 307, 325, 323, 506-II/149 I.P.C. After completing the investigation, challan was presented before the Court for the trial of the appellants. 3 The appellants were accordingly charge-sheeted for the offences aforesaid. They pleaded not guilty and claimed trial and at the end of the trial, after appreciating the evidence of the prosecution, charges under Section 307, 325 and 506 of the Indian Penal Code were not proved. Accordingly, the appellants were acquitted of these offences. However, in the opinion of learned trial Court, offences under Section 147, 323 and 149 of the Indian Penal Code stood proved. Accordingly, they were convicted and sentenced as aforesaid. Shri N.K. Thakur, learned counsel for the appellants has vehemently argued that even the prosecution had miserably failed to prove the ingredients of offence under Sections 147 and 149 of the Indian Penal Code, further there are contradictions in the statements of the complainant and her injured husband regarding the sustaining of injuries which creates a substantial doubt in the authenticity of the prosecution case. As such, conviction of the appellants for the offences aforesaid is un-sustainable. Contra, Shri Vikas Rathore, learned Deputy Advocate General representing the State has supported the impugned judgment of conviction and sentence and prayed for the dismissal of the appeal. I have given my thoughtful consideration to the rival contentions of the parties and have carefully re-appraised the evidence on record. Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for 4 such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. There are two ways in which the liability of a member of an unlawful assembly may arise for an offence not committed by him but by another member of such assembly: (i) Where the offence committed by another member of an unlawful assembly is “in prosecution of the common object of that assembly”. i.e. the offence committed is the direct object, ‘immediately connected with the common object of the assembly’; or (ii) Where the offence committed by another member of an unlawful assembly is not the same which is the common object of the assembly but was such as the members knew was likely to be committed. In other words, the offence committed was the one which was likely to be committed in prosecution of the common object of the assembly. For the purpose of Section 149 of the Indian Penal Code, the liability of other members for the offence committed during the continuance of the occurrence rests upon the fact whether other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of 5 the assembly armed and if such knowledge may not reasonably be attributed, then their liability does not arise. According to PW4 complainant Nasiba Bibi, at about 9.00 P.M, the appellants came to their house and asked them as to why they had joined Kadian sect. When she told them to talk patiently, one of them pelted a brick bat but she saved herself. She also noticed her husband besides her. The appellant Gulam Mohammad pelted another brick bat on him which hit his head and the another brick thrown by the same accused hit the eye of her husband and he fell down on the ground. Injuries started bleeding. When the appellants started giving fist blows to him, she raised hue and cry, then they ran away from the spot. Her husband Kura Deen stated that during those days, he was ill. At about 9.00 P.M, he went out side to pass his urine in the court yard. The bricks bats were pelted by the appellants on his wife. In order to enquire the matter, he went outside and Gulam Mohammad pelted two brick bats and one hit his head and another near his eye. Injury started bleeding and he fell down. Thereafter, the appellants had given him the fist blows. He became unconscious. He identified the brick bats Exhibits P1 to P3 during the trial of the case. On the same day, at about 10. P.M he was examined by PW1 Dr. Ashish Lekhi and he noticed the bleeding from the left nostril but on x-ray, no fracture of the nasal bone was found. However, there was swelling on the left upper lid and around the left eye which was bluish in colour. There was also a skin deep abrasion on the left side of left ear. All these injuries were simple in nature. The aforesaid injuries have clearly been explained having been caused by Gulam 6 Mohammad alone by the aforesaid witnesses. There is no cogent evidence with respect to the participation of other appellants except Gulam Mohammad. Of-course, the complainant and her husband although stated that the accused persons had given them the first blows but the medical evidence does not corroborate this fact at all nor there is any witness to substantiate their version except PW5 Bhago Bibi. From the evidence on record, neither the prosecution was able to prove the un-lawful assembly nor that their object was common to the persons assembled. The vicarious liability of the others stands not established as aforesaid. As such, the offence does not fall within the ambit of Section 147 or 149 of the Indian Penal Code. On the scrutiny of the above evidence, there is nothing on record to implicate the other accused persons, except Gulam Mohammad appellant, for causing simple injuries to PW3 Kura Deen. The statement of injured witness has precedence over the independent witness, which though named in F.I.R but not examined by the prosecution. PW6 Ajit Mohammad is a chance witness and he cannot be relied upon to implicate the other accused persons. However, he has admitted that Sunni and Kadian Sects both keep on quarreling each other. The statement of PW9 Roshan Deen, a Maulvi, is also not free from doubt so as to bring home the guilt of other appellants for the commission of alleged offence. Even from the evidence, the prosecution has also significantly failed to lead evidence to show the sharing of common intention 7 by the appellants. Therefore, in my considered opinion, the conviction and sentence passed on the appellants, except that of appellant Gulam Mohammad, is unsustainable and is accordingly set aside. Appellant Gulam Mohammad is held guilty only for causing simple hurts to PW3 Kura Deen for which conviction under Section 323 I.P.C. and sentence of fine till the rising of the court as passed by the learned trial Court is upheld. However, the conviction and sentence of other appellants is set aside and they stand acquitted, the fine amount if any deposited be refunded to them. The appeal is partly allowed to the above extent. (Surinder Singh) Judge. December 18th , 2008. (bm)