P L D 1968 Supreme Court 372 (PLP)

Hearing the alarms of Mansoor Ahmad, Asghar Ali and Ayub Ali who had hardly proceeded about 1 f0 to 200 cubits, turned back and saw the appellants chasing the deceased. They advanced to the rescue of the deceased and tried to lift him up when he stumbled but at this stage the appellant Martuj dealt two blows on the back of Asghar Ali with a ramdao. On receipt of the blows Asghar Ali receded. Then Jalaluddin inflicted a blow on the deceased with a fikal and pressed him down while Makhan alias Abul Kalam Azad gave a ramdao blow on the neck of Mansoor Abroad. Thereafter, Babar Ali, Jabur Ali and Murtaj began striking the deceased indiscriminately with ramdaos. The others also came up and attacked the deceased with fikals. Asghar Ali began raising alarms at which the appellants Abdul Hakim and Ismail dealt blows to him with fikals. Mansoor Abmad died then and there as a result of the injuries inflicted on him. Some of the appellants then ran back to the house of Sikandar Ali and took shelter there, but Sikandar Ali himself went away towards Chunarughat on a bicycle after handing over his gun to his son Makhan. In the meantime, before the actual assault had begun Badiur Rahman (P. W. 1), a brother of Mansoor Ahmad, who was also returning from Chunarughat on a bicycle, saw the accused persons chasing his brother as soon as he reached Deergach village. Seeing this he at once turned back and rushed to the Thana to give information to the Police. On the basis of his information a General Diary entry was made at 15‑00 hours to the following effect :‑‑ "One Badiur Rabman, son of Mohammad Sona Miah of Chandpur, P. S. Chunarughat, District Sylhet, appeared at the P. S. and informed that his brother Mansur Ahmad is being attacked by Sekandar Master, Makhan, Jalalauddif, Matin, Babar Ali, Jahur Ali, Suruj Ali and 10/12 others on the way at Deergach to save him I left for Deergach with A. S. I., A. Karim and available constables with 2 Rifles and 50 R. A. Charge is as before." The Police Officers reached the spot at 3‑15 p. m. with ‑Badiur Rahman after recording the General Diary entry and found Mansoor Ahmad's dead body lying at the breach of Rajapur Road with bleeding injuries. A large number of persons were also found assembled near the house of Sikandar demanding Makhan and the others, The Sub‑Inspector accompanied by some constables and some members of the public went to ‑the house of Sikandar Master and there, after easing the situation, arrested 10 persons, namely, Makhan, Jalaluddin, Abdul Motalib,Abdur Rashid, Suraj Ali, Martuj, Maksud, Firoj Ali, Ismail and A5u1 Hossain from inside the house of Sikandar Ali. He also seized six fikals, two lathis, one Halanga, one S. B. B. L. gun No. 12810 with a belt containing 9 cartridges and two blood stained lungis from the persons of appellants Makhan and Abdul Motalib. Blood‑stained earth and grass were also seized from near the dead body together with a piece of the broken outer fencing of the house of one Abdul Aziz (P. W. 4). The latter, it is said, had broken his outer fencing to enable the deceased to take shelter in his house. The dead body was sent to the morgue and Asghar Ali (P. W. 2), Mainullah (P. W. 9), and Idrees Ali (P. W. t 0), who had sustained injuries in the course of the incident, were sent for medical examination. Then a full statement of Badiur Rahman (P. W. 1) was recorded and forwarded to the Police Station for being registered as a formal First Information Report. On the same day Babar Ali, Jahur Ali and Sikandar Ali Master were also arrested and the blood‑stained fikals and lungis seized from the house of Sikandar Ali Master were sent for chemical examination. On post‑mortem examination as many as 14 injuries were found on the body of the deceased of which 7 were incised wounds and 7 punctured wounds. The neck was found to have been cut with a sharp‑cutting weapon and the middle lobe of the right lung was found pierced. There was also an incised wound on the back of the head starting from the right temporal bone to the left mastoid which had injured the brain surface and clotted it with blood. The injury on the right temporal bone and the punctured wound on the right and anterior axillary fold at the third inter‑costal space, which had fractured the rib gad pierced the lung, were considered by the Doctor to be by themselves sufficient in the ordinary course of nature to cause death. The prosecution examined as many as 41 witnesses in support of its case. Of these four had seen the occur rence from the beginning to the end and six others had seen the actual assault on the deceased. Of these latter witnesses three had themselves received injuries, namely, Asghar Ali, Mainullah and Idrees Ali. The Courts below have, on a careful and exhaustive examination of their evidence, come to the conclusion that they proved the prosecution story with regard to the chase of the deceased at the command of Sikandar Ali Master and the ultimate assault upon him as he stumbled in the breach on Rajapur, without any shadow of doubt. It appears that the defence did not challenge the time and place of occurrence nor the factum of death of the deceased but their plea was that they were not responsible for the incident. They alleged that they had been falsely implicated out of grudge and previous enmity. According to them there was altercation between the deceased and his party men on the road with some persons who had been charged with being cattle lifters and as a result of this altercation a rioting had taken place in the course whereof Mansoor Ahmad lost his life. While accepting the participation of the 15 persons, convicted by the trial Court, in the unlawful assembly the High Court came to the view that the common object of the unlawful assembly formed at the beginning was merely to give a beating to the deceased and not to kill him, for, some of the members of this unlawful assembly were not armed with any lethal weapon and did not join in the ultimate assault on the deceased. Benefit of doubt was also given to Sikandar Ali Master as there was some discrepancy between the witnesses on the point as to whether he was actually armed with a gun when chasing the deceased. It was felt that had Sikandar Ali Master been armed with a gun and a cartridge belt and had the object of the unlawful assembly been to kill Mansour Ahmad, there was no reason why the gun should not have been used for the purpose. In this view of the matter, the High Court felt that the accused persons had been rightly acquitted of the charge under section 302/149, P. P. C., but, in its view, there was no justification for not convicting them under section 326/149, P. P. C. In respect of the charge under section 302/34, P. P. C. only those persons were found guilty who had actually struck blows on the deceased with ramdaos and fikals, namely, Makhan, Jalaluddin, Martuj, Babar Ali and Jahur Ali and their conviction was maintained on the ground that they had acted beyond the common object of the unlawful assembly. They were thus personally liable for their acts. The convictions of Martuj, Abdul Hakim and Ismail under section 324, P. P. C. for causing hurt to Asghar Ali with ramdao blows was also held to have been satisfactorily established. It will be noticed that out of the persons convicted under section 302/34, P. P. C., Makhan and Jalaluddin have not preferred any appeal but only Martuj, Babar Ali and Jahur Ali are appellants before us. Martuj has also been convicted under section 324, P. P. C. along with appellants Abdul Hakim and Ismail. Sikandar Ali Master, Suruj Ali, Abul Hossain and Abul Hashim who have been convicted only under sections 147 and 326/149, P. Y. C. have also not preferred any appeal. Out of the latter group only Firoj Ali and Maksud are before us. The other two appellants, namely, Abdul Mutalih alias Matin and Abdur Rashid have been convicted under section 148, P. P. C. along with section 326/149, P. P. C. Learned counsel, appearing in support of this appeal, has taken us through the evidence and on a careful examination of the evidence we find that there is nothing that can be said in favour of the appellants other than Firoj Ali and Maksud Ali. The case against them has been established beyond any reasonable doubt by as many as 10 eye‑witnesses of whom 4 actually received injuries in the course of the same incident. Their presence cannot, therefore, be doubted. One of these, namely, Moinullah (P. W. 9), has not been relied upon by the trial Court but there appears to be no reason to doubt the veracity of the other three. They have described in detail the part played by each of the convicted persons and their evidence has been corroborated by the medical evidence and the evidence of other independent witnesses, particularly, Abdul Aziz, Rajabunnessa, Abdur Rahman and Shamsu (P. Ws. 4‑7) who are refugees from India and were living just to the north of Rajapur Road where the incident took place. Abdur Rahman (P. W. 6) himself received injuries at the hands of appellant Abdur Rashid. They had no direct connection with either of the rival parties and had no special reason to falsely implicate any of the convicted persons. We are, therefore, of the view that the Courts below rightly relied upon their evidence. Now as far Firoj Ali and Maksud Ali, we find that apart from the fact that they were arrested by Sub‑Inspector Kazi Waliul Islam, (P. W. 38), from the house of Slkandar Ali Master immediately after the incident, no overt act has been proved against them by any of the witnesses. They have not been shown to have been armed with any kind of weapon. The mere fact, therefore, that no prosecution witness has been shown to have any special enmity against them, is not a sufficiently valid criterion for accepting their implication in a case in which there was clear evidence that there were apart from the members B of the rival groups in the village, one led by the deceased and the other led by Sikandar Ali Master, many others also present near about the place at or about the time of the occurrence. The mere fact, therefore, that they were identified in the crowd and were arrested from the house of Sikandar Master is not sufficient to establish that they also shared the common object of the unlawful assembly. It may well be that they were silent spectators who out of fight took shelter with others in the house of Sikandar Ali Master. 1n the circumstances, we are of the opinion, that they should be given the benefit of doubt and acquitted. The learned counsel appearing in support of the appeal has endeavoured his best to assail the evidence against the other appellants before us and in particular the evidence against those convicted under section 302/34, P. P. C. But we are of the view that their convictions for offences other than the offence under section 326/149, P. P. C. cannot be assailed. The evidence, as pointed out by the High Court, is indeed overwhelming against them and we see no reason to disagree with the assessment thereof by the Courts below. The only question that needs consideration in this case is as to whether the convictions under section 326/149, P. P. C. were proper. Mr. Meser Ali, appearing on behalf of the appellants, has contended with some force that where the principal offenders in a case of rioting are convicted of one offence, the others cannot be held to have committed constructively an offence different from the offence found to have been committed by the principal offenders. According to him since the principal offenders had been convicted under section 302/34, P. P. C., neither they nor any one of the others could be convicted under section 326/149, P. P. C. In support of this contention he has placed strong reliance on a decision of the Patna High Court in the case of Ram Prasad Singh v. King Emperor (A I R 1922 Pat. 753). It is true that in the case cited above this view was adopted but it appears that it was not accepted as the correct view by the other High Courts in British India. The Patna High Court itself in a later case dissented from the above view and so far as India is concerned, the question is now set at rest by a decision of the Supreme Court of that country in the case of Shambhu Nath Singh and others v. State of Bihar (A I R 1960 S C 725). It seems to us that the view taken in the case of Ram Prasad Singh does not take into account the principles laid down in sections 35 and 38 of the Penal Code. In our view, on a plain reading of section 149, P. P. C. it would appear that it is in two parts and that an accused who is found to be a member of an unlawful assembly can be convicted of a lesser offence if under the second part of that section it is clear that he was aware that such a lesser offence was likely to be committed in prosecution of the common object although some members of the assembly may have traveled beyond that object and committed a graver offence. In construing this section each case has to be judged upon its own facts, for, it has to be determined with reference to the facts of each case what offence the members must have known to be likely to be committed. If such offence is minor to the offence committed by the principal offenders there is no reason why they should not be convicted accordingly. The liability of individual members of an unlawful assembly under this section must necessarily depend on the intention or knowledge of the If the common object of the unlawful assembly is to inflict no more than grievous hurt in circumstances where death was not the likely consequence but some of the members of the assembly deliberately went beyond the common object and killed the victim, the killers would be liable for murder but the remaining members would be constructively liable for inflicting grievous hurt. The wording of section 149, P. P. C. when applied, as it must be, to the case of each individual accused appears to be perfectly straightforward. It cannot, in any event, be seriously argued that the causing of death does not fulfil the definition of grievous hurt. Thus even the principal offenders have in such a case also committed grievous hurt, the common object of the assembly, and, therefore, the other members can legitimately be held to have constructively commit‑ Thus, where the accused are members of an unlawful assembly which starts beating the deceased and the assembly is armed with deadly weapons but the accused are found not guilty of murder then there is no reason why they cannot be held to be constructively liable for the lesser offence of grievous hurt, read with section 149, P. P. C., because, they must have in the circumstances of the case, known that a grievous injury was likely to be caused. We, therefore, find no reason to interfere with the convictions made by the High Court under section 326/149, P. P. C. except in the case of the three appellants. Babar Ali, Jahur Ali and Martuj Ali who have been convicted under section 302/34, P. P. C.. for, where a person has already been held to be constructively guilty of murder, he cannot be, by a double construction, made guilty also for the lesser offence under section 326/149, P. P. C., since in such a case the lesser offence is included in the graver offence. We would, therefore, allow this appeal only to the extent that the convictions of Firoj Ali and Maksud Ali under sections 147 and 326/149, P. P. C. will be set aside and they will be acquitted of all the charges made against them. The convictions of Babar Ali, Jahur Ali and Martuj Ali under section 326/149, P. P. C. will also be set aside and they will be acquitted of the said charge but their convictions under section 302/34, P. P. C. will be maintained. The appeals of the rest of the appellants will, however, be dismissed. The appellants Firoj Ali and Maksud Ali will be set at liberty forthwith if not required in any other case. K. B. A. Appeal partly accepted.