Nazaruddin and Another (In Jail) vs State of U.P.

Amar Saran, J.—This criminal appeal arises out of the judgment and order of the learned I Vth Additional Sessions Judge, Ghaziabad in Sessions Trial No. 101 of 1980, dated 2.12.1981. By this judgment the learned Sessions Judge held the Appellant Nazaruddin guilty of an offence u/s 302, I.P.C. and sentenced him to undergo imprisonment for life. u/s 148, I.P.C. Nazaruddin was awarded R.I. for a period of two years'' and u/s 323/149, I.P.C. he was sentenced to one year''s R.I. The Appellant Shahabuddin was sentenced to undergo imprisonment for life u/s 302/149, I.P.C. to undergo R.I. for 18 months for an offence u/s 147, I.P.C. and to undergo R.I. for one year u/s 323/149, I.P.C. All the sentences of both the Appellants were ordered to run concurrently. The third accused Chuttan who has been charged under Sections 147, 323/149 and 302/149, I.P.C. was acquitted.

Briefly stated the prosecution story was that the informant Bhullan Khan who was originally a resident of village Naithala was married to one Asso who was the daughter of Bundu Mistri resident of village Tilpata. For the last 30 years after his marriage Bhullan Khan had been residing in his ''sasural'' in village Tilpata and was looking after the cultivation of his father-in-law, Bundu, who had no other issue, other than Asso. Before his death, Bundu executed a Will bequeathing all his properties in favour of his daughter Asso. However, Nazaruddin and Shahabuddin who were nephews of Bundu and Chuttan who was the brother of Bundu were resentful of this disposition of Bundu''s property in favour of Asso on the basis of the Will and consequently Nazaruddin and Shahabuddin had filed a case in respect of that property which had ended in favour of the Asso and Bhullan.

In the morning of 27.11.1979 at about 11.30 a.m. the testator''s son-in-law, Bhullah, and Bhullan''s son Nazar Mohammad were ploughing their field and were planting wheat there. The deceased Ajmeri was also helping them in these agricultural operations. At that time, the Appellants and the acquitted accused Chuttan accompanied by 5 or 6 unknown person arrived there carrying lathis and spears. Appellant Nazaruddin was armed with a single barrel gun. Appellants Nazaruddin and Shahabuddin are said to have given out a cry that they would teach a lesson to the prosecution party for ploughing the field. They, then began plying lathis on the informant Bhullan Khan and his son Nazar Mohammad and all of a sudden Nazaruddin fired his gun at Ajmeri, which struck him. He fell on the spot and died within a short while. On the alarm raised by the informant and others Nabbu, Shabbir and Satram arrived at the place of incident. On seeing the witnesses the Appellants Nazaruddin and others ran away towards the west. The informant then proceeded to the police station Dadri, which was one and half miles away, and lodged a report on the same day at about 12.40 p.m.

The injured Nazar Mohammad and Bhullan Khan were medically examined by Dr. M. P. Singh P.W. 4 at the Government Hospital at Dadri on 27.11.1979 at 1.20 p.m. and 1.40 p.m. respectively. The post-mortem on the body of the deceased Ajmeri was conducted by Dr. M. K. Goel P.W. 8 on 28.11.1979 at 4 p.m.

The investigation in this case was conducted by S.I. D. N. Verma, P.W. 6, who submitted a charge-sheet on completion of the investigation.

The Appellant Nazaruddin was charged under Sections 148, 323 read with Sections 149 and 302, I.P.C. and charges were framed against the Appellant Shahabuddin, and the acquitted co-accused Chuttan under Sections 147, 323 read with Sections 149 and 302 read with Section 149, I.P.C. by the learned Sessions Judge, Ghaziabad on 22.1.1981.

At the trial the prosecution examined 9 witnesses in all. Out of then P.W. 1 Bhullan Khan, P.W. 2 Nazar Mohammad and P.W. 3 Nabbu were examined as eye-witnesses. Of these eye-witnesses, P.W. 1 Bhullan Khan and P.W. 2 Nazar Mohammad were injured. The inquest on the body of the deceased was conducted by P.W. 5 Balbir Singh and P.W. 6 D. N. Verma. P.W. 4 Dr. M. P. Singh examined the injuries of the two injured and P.W. 8 Dr. M. K. Goel conducted the post-mortem examination on the body of the deceased Ajmeri, and P.W. 9 C. Charan Singh carried the dead body for post-mortem examination.

The documentary evidence consisted of the written report (Ext. Ka-1), seizure memo in respect of the blood stained clothes of Nazar Mohammad, (Ext. Ka-2), injury reports of Nazar Mohammad and Bhullan (Exts. Ka-3 and Ka-4), inquest report (Ext. Ka-5), photo lash (Ext. Ka-6), challan lash (Ext. Ka-7), report of R.I. (Ext. Ka-8), reports to the C.M.O., Bulandshahr (Exts. Ka-9 and Ka-10), seizure memo of blood stained and plain earth (Ext. Ka-11) and fards of two lathis found on the spot (Ext. Ka-12), site plan (Ext. Ka-13), charge-sheet (Ext. Ka-14), chik F.I.R. (Ext. Ka-15), copy of G.D. entry (Ext. Ka-16), copy of earlier F.I.R. by Shabbir (Ext. Ka-17), Post-mortem report (Ext. Ka-18).

The plea of the Appellants was of denial and they claimed to have been falsely implicated in the incident on account of enmity. One witness D.W. 1, member was examined for giving some hearsay evidence in support of the fact that at about 8 or 8.30 p.m. there was a cry in the village that Ajmeri had been murdered. Like other co-villagers when he visited the field he found Ajmeri lying dead there. The accused led no other evidence in their defence.

P.W. 1 Bhullan Khan in his evidence, apart from supporting the case set up in the F.I.R. sated that one day prior to this incident the accused Shahabuddin, Nazaruddin and Chuttan and one Khacheru had issued threats to the informant, the deceased Ajmeri, Nazar Mohammad and Shabbir that if the latter plough the disputed field they would murder them. This separate field over which Bundu had rights was of 10 bighas. Bundu Mistri had died 4 years earlier, and about 18 days earlier Asso and Bhullan the land litigation had ended in their favour. As a sequel to that warning the incident dated 27.11.1997, had taken place at 11.30 a.m. At that time two or three unknown persons were accompanying the Appellants. Nazaruddin was carrying a gun ; Shahabuddin and Chuttan were carrying lathis. Amongst the other persons, one had a spear, whilst the remaining two carried lathis. The accused persons hurled abuses and thereafter Nazaruddin, Chuttan and two of the unknown persons plied their lathis. Chuttan while plying his lathi, cried out "maro saley ko." Thereupon, Nazaruddin fired his gun at the deceased who fell down and died on the spot. Bhullan Khan and his son Nazar Mohammad received lathi injuries. The lathi injuries were caused by Chuttan, Shahabuddin and their companions. Nazaruddin did not ply any lathi but only fired a shot. He denied the suggestion that when he reached the spot in the morning he found Ajmeri lying dead there and that he had lodged the report in collusion with the police.

P.W. 2 Nazar Mohammad in his evidence also reiterated the version about the incident of the previous day in which Shahabuddin, Nazaruddin, Chuttan and Khacheru issued threats to Bhullan Khan, Nazar Mohammad and others. On the fateful day Nazar Mohammad, his father Bhullan Khan and the deceased Ajmeri had gone to sow wheat in the field, which had been bequeathed by his maternal grand father to his mother. His elder brother Shabbir had gone to the police station to lodge the report of previous day''s incident. This non-cognizable report No. 437 under Sections 504 and 506, I.P.C. dated 27.11.1979 at about 8.45 a.m. is also on record. He further stated that at about 11.30 a.m. when Bhullan Khan, Nazar Mohammad and the deceased Ajmeri were planting wheat, the Appellants Nazaruddin, Shahabuddin and Chuttan accompanied by 3 or 4 unknown persons arrived there. Nazaruddin was armed with a gun, Shahabuddin and Chuttan were carrying lathis and amongst the unknown others, one was armed with a spear and the others carried lathis. Nazaruddin and Shahabuddin told them that they would teach them a lesson for ploughing the field. Thereafter the persons armed with lathis assaulted Nazar Mohammad and his father Bhullan Khan. Chuttan is said to have cried out to fire a shot. Thereupon Nazaruddin fired with his gun on the deceased Ajmeri, who fell down on account of the shot received by him and died on the spot. Bhullan Khan and Nazar Mohammad also suffered injuries. Shabbir and Nabbu are also said to have arrived at the spot at that time and to have witnessed the incident. The other persons reached the spot after the accused persons ran away from the spot. Very shortly thereafter Nazar Mohammad proceeded with his father to lodge the report at the police station Dadri. The doctor examined him and found that there were severe bleeding injuries on his head. His while kurta and paijama which he was wearing at the time of incident were stained with blood. This kurta and paijama were sealed by the police as material exhibits. Nazar Mohammad denied the suggestion that the incident prior to the date of the murder never took place and that the report had been fabricated in collusion with the police.

The third witness P.W. 3 Nabbu is the nephew of the deceased Ajmeri. He claimed to have reached the place of incident at about 11.30 a.m. on the date in question as he was carrying food for Bhullan Khan and Nazar Mohammad. He stated that the field where the incident took place belonged to Bhullan Khan and it was to the north of village Tilpata. He was about 20-25 paces away from the place of incident when he saw his uncle Ajmeri ploughing the field, Bhullan Khan was scattering seeds and Nazar Mohammad was clearing the field of weeds. At that time accused Shahabuddin, Nazaruddin and Chuttan accompanied by six other person were present at the field. Shahabuddin and Chuttan were assaulting Nazar Mohammad and Bhullan Khan with lathis and on the exhortation of Chuttan to fire, Nazaruddin fired a shot on the chest of Ajmeri with his single barrel gun. On seeing the witnesses the accused persons ran away. Shabbir was also present with him. Nabbu, Bhiki and member also came there. In cross-examination Nabbu has stated that he owns 28-30 bighas of land and denied the suggestion that Ajmeri and he were landless. He had gone to the field where the incident took place carrying food, accompanied by Shabbir at about 11 a.m. He was present at the place of incident from 11.30 a.m. till 3 O''clock. Later, the mother of Ajmeri and his wife also arrived at the place of incident. His statement was recorded u/s 161, Cr. P.C. by the Investigating Officer at the place of the incident together with the statements of member, Sant Ram and others. He denied the suggestion that he was not present at the place of the incident and he affirmed that he had shown the Investigating Officer the place of the incident.

P.W. 8 Dr. M. K. Goel, who conducted the post-mortem examination on the body of the deceased Ajmeri on 28.11.1979 at about 4 p.m., stated that the deceased was about 40 years in age and of a good muscular built. Rigor mortis was present on the whole body. The deceased had died about one and a quarter days prior to his post-mortem examination. He found the following injuries on the person of the deceased:

(1) gun shot wound of entry with irregular lacerated edge in front of right chest just below middle part of right clavicle bone 2" ? 11/2". It was surrounded by multiple punctured wounds about 16 in number in an area of 1/2" around the wound extending from 2 to 9 O''clock position. Blackening and scorching of the skin surrounding the wound was present.

On internal examination a communited fracture of third and fourth rib of right side under injury No. 1 was found. Right lung was lacerated in the upper lobe and a few pellets were lodged in it. Right pleural cavity was full of fluid blood. Heart was empty. Stomach was empty, large bowel was full of faecal; matter. Three cork pieces and 13 pellets were found under the injures of the deceased, which were sealed by the doctor and handed over to the police. The death of the deceased could have taken place on 27.11.1979 at about 11.30 a.m. The injuries were sufficient in the ordinary course of nature to cause the death of the deceased. The deceased could have died within 36 hours prior to the post-mortem examination.

P.W. 4 Dr. M. P. Singh conducted the medical examination of Nazar Mohammad on 27.11.1979 at 1.20 p.m. and found the following injuries on his person:

(1) A lacerated wound 2.5 cm. ? 0.5 cm. ? skin deep 10.5 cm. above the right eye-brow. Blood clot was present, blood was oozing. Margins are irregular.

(2) A lacerated wound 3.5 cm. ? 0.5 cm. ? skin deep on the right parietal region of the skull 8 cm. above the left eye brow.

(3) A lacerated wound 3.5 cm. ? 0.5 cm. ? bone deep on the left side forehead 2 cm. above the right brow.

(4) Abrasion 1 cm. ? 0.5 cm. on frontal region of skull 11 cm. above the right eye brow.

(5) Abrasion 3.5 cm. ? 1.5 cm. on the left shoulder 6.5 cm. from clavicular joint. The colour was reddish.

All the injuries were fresh and caused by some blunt object. Injury Nos. 4 and 5 were simple in nature. Injury Nos. 1, 2 and 3 were kept under observation and X-ray of the skull was advised.

P.W. 4 Dr. M. P. Singh conducted the medical examination of Bhullan Khan at 1.40 p.m. on 27.11.1979 and he found the following injuries on his person:

(1) A lacerated wound 3 cm. ? 0.5 cm. ? bone deep, on the front of right leg, 15.5 cm. below tibial tuberosity.

(2) Traumatic swelling 6 cm. ? 5 cm. on the outer side of right leg with an abrasion 1 cm. ? 0.5 cm.

(3) Abrasion 0.5 cm. ? 0.5 cm. ?with swelling 2 cm. ? 1 cm. on the last phalanx of left thumb.

(4) Abrasion 4 cm. ? 0.5 cm. with swelling 5 cm. ? 3 cm. on the outer side of right forearm 10 cm. above the wrist.

(5) A traumatic swelling 4 cm. ? 3 cm. on the outer side of left upper arm 10 cm. above the right elbow.

All the injuries were fresh, caused by some blunt object such as lathi. Injuries 1 and 2 were kept under observation and X-ray of the right leg was advised. The other injuries were simple. The doctor denied the suggestion that injuries could have been received by falling from a tonga. He conceded to the possibility of injury Nos. 1, 2 and 3 of Nazar Mohammad having been caused by falling on stones and Bhullan''s injury No. 1 could have been caused by falling on stones and his injury Nos. 4 and 5 could have been fabricated.

P.W. 6 S.I. D. N. Verma who was the Investigating Officer in this case stated that on the arrival of the informant at the police station he recorded the statements u/s 161 Cr. P.C. of the informant Bhullan Khan and Nazar Mohammad. He also received a copy of a non-cognizable report under Sections 504 and 506, I.P.C. On reaching the place of incident S.I. Balbir Singh, who had proceeded earlier to the place of incident to conduct the inquest etc. gave him the letter for post-mortem and Fards etc. He recorded the statements of the inquest and recovery witnesses at the spot. At that time S.I. Ramvir Singh arrived at the spot along with the medical report of Nazar Mohammad and the informant Bhullan who also reached there. On the pointing out of the informant, he inspected the spot and prepared the site plan, which has been exhibited as Ext. Ka-13. He could not locate the witnesses Sant Ram, Nabbu and Shabbir. He recorded the statements of Nabu and Shabbir on 21.1.1980 at the police station. On completion of the investigation he submitted the charge-sheet. On 11.12.1979, the accused Nazaruddin and Shahabuddin appear to have surrendered to judicial custody. He denied that he had learnt about the murder of the deceased Ajmeri at 8 a.m. and thereafter he fabricated the report in respect of the murder as there was an earlier report under Sections 504 and 506, I.P.C. which is said to have been lodged at 8.45 a.m. He denied the suggestion that he did not visit the place of occurrence and that he had falsely implicated the accused persons by colluding with the informant. He has also denied that he had got fabricated the injuries of Bhullan Khan and Nazar Mohammad and thereafter got them medically examined.

It was contended by learned Counsel for the Appellants that at different stages there are discrepancies in the number of unknown persons who are said to have participated in the incident along with the named accused persons Shahabuddin, Nazaruddin and Chuttan. Thus, according to the F.I.R. 5 or 6 unknown persons accompanied the three named accused persons in the incident. In the evidence of P.W. 1 Bhullan, two or three other persons accompanied the named accused. According to P.W. 2 Nazar Mohammad three or four unknown persons joined hands in the incident and according to P.W. 3 Nabbu again 5 or 6 unknown persons joined the three named accused persons in the incident. In view of these discrepancies learned Counsel submits that the case of the prosecution becomes doubtful. We are not impressed by this contention of learned Counsel. Nothing material turns on the circumstance whether 2 or 3, 3 or 4 or 5 or 6 unknown persons also joined the three named accused in the incident. The substance of the matter is that the incident had taken place in broad day light at 11.30 a.m. One person had died. There are two injured witnesses Bhullan Khan P.W. 1 the informant of this case and his son Nazar Mohammad whose presence at the time of the incident cannot be doubted only on the ground that there was some variation in the number of the unknown persons who are said to have joined the three named accused persons in this case. In fact, absence of such small variations would lead one to question the veracity of their testimony, and give rise to the suspicion that the testimony was tutored.

The second contention advanced by the Appellants'' counsel for discarding the prosecution case was that all the witnesses were partisan, inasmuch as Bhullan Khan and Nazar Mohammad, father and son who were equally interested in the land in dispute and Nabbu nephew of the deceased have only been produced by the prosecution. There is absolutely no reason to suspect that the injured or relation witnesses would discard the real assailants and implicate the named accused persons of this case. Hence there is no force in this submission.

It has also been argued by learned Counsel for the Appellants that the motive for this incident has not been established as no document has been filed showing that any litigation was pending between the parties. It may be noted that the motive suggested in this case was that one Bundu had bequeathed his land by a Will in favour of his daughter Smt. Asso which was being tilled by his son-in-law Bhullan and his son Nazar Mohammad. This fact must definitely have been the cause of some ire for his nephews, accused Nazaruddin and Shahabuddin and his brother Chuttan. It is noteworthy that under the revenue law, Chuttan the surviving brother was a preferential heir compared to the daughter, as Bundu had no son or other issue, and this appears to be the cause for the Will by Bundu in favour of Asso, which must have been a source of annoyance for the accused. Nazaruddin and Chuttan admitted that after Bundu''s death Bhullan was cultivating the plot, and thus there was no serious challenge to the field in question being under the occupation of Bhullan. The existence of litigation between the parties was also admitted by Nazaruddin who set up a rival Will. However, whilst the P. Ws. were claiming that they had won the land litigation, according to Nazaruddin he had filed a case for mutation of the property which had been referred to Lucknow. Hence non-filing of litigation papers by either party was not material. In this context the trial court has rightly stated: "Nazaruddin did not institute a suit for declaration of his rights on the basis of the said Will and for possession of the disputed land. Instead he merely started proceedings for mutation. Mutation over agricultural land is done on the basis of possession with some title and if a person is not in possession mutation cannot be ordered in his favour. The fact that Nazaruddin merely started mutation proceedings reflects his intention to take possession as and when an opportunity may arise."

The motive for the incident is also corroborated by an earlier non-cognizable report (Ext. Ka-17) which was lodged at about 8.45 a.m. under Sections 504 and 506, I.P.C. by Shabbir another son of Bhullan in respect of the incident dated 26.11.1979, where again the accused persons and one Khacheru had issued threats that they would murder the prosecution party if they set their eyes on the disputed land. The taking into possession the blood stained clothes of the injured Nazar Mohammad by the police also provides some confirmation of the incident.

An argument was raised that the incident could have taken place in the night hours as the stomach of the deceased was empty and large intestine was full of faecal matter. There is no hard an fast rule that a man must take his food as soon as he wakes up and must pass motion immediately. It was even possible that a person suffering from constipation has not been able to pass motion. The presence of rigor mortis on all the limbs of the deceased also does not prove that the incident had taken place in the night as the time of post mortem was 4.30 p.m. on 28.10.1979 and the doctor stated that 1-1/4 days had elapsed after the incident when the post-mortem was conducted, which corresponded with the date and time (27.11.1979 at 11.30 a.m.) mentioned by the prosecution. A mere admission by the doctor that the incident could have taken place even 36 hours prior to the post-mortem will not advance the case of the prosecution significantly. In any case, the medical examination of the two injured witnesses, who had lacerated wounds on the skull and parietal region and traumatic swellings and other injuries and from whose injuries fresh blood was oozing at 1.20 p.m. and 1.40 p.m. on 27.11.1979, would also go to show that the incident had taken place at the time as alleged by the injured witnesses, i.e., at about 11.30 a.m. on 27.11.1979 and not in the night hours as suggested by the defence. As the injuries were still fresh, there would be need to rush these injured witnesses for medical examination at the earliest, and no one would have waited till mid-day on 27.11.1979 if the injured had received injuries in the night of 26/27.11.1979.

Learned Counsel for the Appellants has finally contended that the case of Appellant Shahabuddin should be considered separately from the case of Nazaruddin and this Court should consider to what extent would criminal liability extend to Shahabuddin for the homicidal death of Ajmeri. We think this is a legitimate course of enquiry. So far as the case of the Appellant Nazaruddin is concerned, he has been assigned the clear and specific role of firing on the deceased Ajmeri with a gun which resulted in his death. The medical evidence corroborates the allegation of causing death by a fire-arm injury. The single gun shot wound on the chest of the deceased Ajmeri was sufficient in the ordinary course of nature to cause his death. The two injured witnesses Bhullan Khan P.W. 1 and Nazar Mohammad P.W. 2 also support the case of the deceased Ajmeri dying as a result of firing by the Appellant Nazaruddin. Hence Nazaruddin is clearly liable for the murder of the deceased.

However, the case of Appellant Shahabuddin stands on a different footing. The role assigned to Shahabuddin is only of plying a lathi along with Chuttan and two unknown persons on the injured Bhullan and Nazar, who received only simple injuries, since inspite of the direction of Dr. M. P. Singh to keep a few injuries of the two injured under observation there was no supplementary report or X-ray report indicating that any of the injuries to the injured were grievous. The charge and conviction for causing hurt to Nazar Mohammad and Bhullan was also only u/s 323/149, I.P.C. No role has been assigned to the Appellant Shahabuddin of giving even a single lathi blow to the deceased Ajmeri. The post-mortem report of the deceased Ajmeri also does not show any lathi injury. There is only a gun shot injury on the person of the deceased. According to the injured witness, Nazar Mohammad, P.W. 2, at the time of the incident Nazaruddin and Shahabuddin are said to have cried out that they would teach the prosecution party a lesson for ploughing the field, and after that they started plying lathis on the informant Bhullan Khan P.W. 1 and Nazar P.W. 2. causing simple injuries to them. At that time, the acquitted co-accused Chuttan is said to have cried out, "mar saley ko goli". Immediately thereafter Nazaruddin fired a shot on Ajmeri, which resulted in his death.

In Pandurang, Tukia and Bhillia Vs. The State of Hyderabad, , where 5 accused persons had come in a body, three of whom were armed with axes and two carried sticks with which they attacked the deceased. However as Pandurang though armed with an axe had "only inflicted a light blow on the scalp which did not break any of the fragile bones in the region" and from the fact that two others were lightly armed with sticks inflicted no injuries on the deceased Ram Chander, no common object for committing murder was inferred. Nevertheless, the conviction of Bhillia, and Tukia u/s 302, I.P.C. who had caused fatal injuries to the deceased was upheld, but so far as Pandurang was concerned the Court observed, "In our opinion, his act falls u/s 326, I.P.C. A blow on the head which penetrates half an inch into the head is, in our opinion, likely to endanger life. We therefore, set aside his conviction u/s 302, I.P.C. and convict him instead u/s 326."

In the classic statement of the law relating to Section 149, I.P.C., Queen v. Sabid Ali and Ors. 1873 (20) SWR 5 (FB), Phear, J., has contrasted the difference between Sections 460 and 149, I.P.C. The former "makes all the persons concerned in committing a burglary punishable with transportation for life, if any one of their number, at the time of the committing of the burglary, causes death, etc. and, strongly bears out this view. I am of the opinion that an offence, in order to fall within the first of the above alternatives, i.e., in order to be committed in the prosecution of the common object, must be immediately connected with that common object by virtue of the nature of the object.

The facts in Queen v. Sabid Ali, were somewhat similar to the facts in the instant case. In that case the prisoners had attacked Fukeer Buksh whilst he was ploughing his own land in company with his three kinsmen and co-sharers, Samed Ali, Shuruf Ali and Kadez Ali, and in that struggle one of the accused aggressors, Tureeboollah, fired a gun killing Samed Ali on the spot and wounding Shuruf Ali in the back. Phear, J., further observes, "I think there appears to be abundant reason for coming to the conclusion that Tureeboollah committed murder in the way described by the Judge. But it seems also clear that murder, or even the taking of life, was not immediately connected with the common object of the unlawful assembly of which the prisoners were members. That common object was, as the Judge expresses it , to drive Fukeer Buksh of the land, and to prevent him from cultivating it. There is, however, nothing in the evidence to indicate that the members of the assembly were prepared and intended, to accomplish that object at all hazards of life. I do not think that they intended to attain the common object by means, If necessary, of murder. Indeed, the Judge himself says that the resistance offered by Samed Ali and Shuruf Ali was unexpected by the prisoners'' party, and that it led to the sudden, and probably at first unintended, use of the gun by Tureeboollah."

In the present case, it is significant that the accused party could be expected to be principally resentful of Bhullan (or his son Nazar), because of Bundu''s bequest of the property in favour of his daughter Asso (Bhullan''s wife), yet Bhullan and Nazar were let off with relatively light injuries with lathies, which were plied after a cry was given to teach the accused a lesson for ploughing the field, and the common object of the unlawful assembly only appears to be to chastise Bhullan for taking possession of Bundu''s land and may be to drive him out of the land as was the case in ''Sabid Ali''. All of a sudden when the acquitted co-accused Chuttan gave a cry. "mar saley ko", the Appellant Nazaruddin fired the single shot killing the deceased Ajmeri, who was not beaten by lathis at all. Now Ajmeri had no concern with the property. There could have been some individual, private resentment of Nazaruddin alone, or Nazaruddin along with the acquitted accused Chuttan, against the ''interfering'' outsider Ajmeri, who had no business with the land and yet who was helping Bhullan and Nazar to occupy the land, which need not have been necessarily shared by the other members of the assembly including Shahabuddin. Significantly Shahabuddin is not even ascribed the role of exhorting anyone to beat the deceased or injured in this case. But we can only speculate on possibly motives here. In such circumstances it cannot be inferred with any degree of certainty, that the murder had been committed in prosecution of the common object of the assembly or the act was one which the members of the assembly knew to be likely to be committed in prosecution of the common object.

Pontifex, J., in a separate concurring opinion in ''Sabid Ali'' has observed that the word ''knew'' to be likely in the second part of Section 149, must be distinguished from ''might have known'':

The offence of murder, as strictly defined by the Code, requires a previous intention or knowledge in the perpetrator; and to ''know'' that murder is likely to be committed is to know that some member of the assembly has such previous intention or knowledge. The word ''knew'', used in the second branch of the Section, is, I think, advisedly used, and cannot be made to be the sense of ''might have known''.

As an accused is to be made vicariously liable with the aid of Section 149, I.P.C. for an offence which he may not have directly committed the inference that the act done by the accused who has actually indulged in the act in question, was in prosecution of the common object of the assembly or that it was one which the members of the assembly knew to be likely to be committed in prosecution of the common object, is one which ought not to be reached, unless it is the only inference deducible from the facts. In this connection it has been aptly emphasized by the Apex Court in Allauddin Miyan v. State of Bihar 1989 ACR 473 (SC) : (26)1989 ACC 400 : "Since this section imposes a constructive penal liability, it must be strictly construed (emphasis ours) as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same."

From the absence of any lathi injuries on the deceased Ajmeri, who was an outsider, and no claimant to the property and the circumstances in which Nazaruddin alone (or in conjunction with the acquitted accused) appears to have fired on the deceased, it cannot safely be inferred that the murder of Ajmeri was committed by Nazaruddin in prosecution of the common object of the assembly. But the question still remains as to what offence could the members of the unlawful assembly have anticipated as likely to result if the common object of that assembly was to teach Bhullan a lesson for ploughing and taking possession of Bundu''s land. I think that as the accused had gone in an unlawful assembly and one of the accused (Nazaruddin) was carrying a gun. There was also the earlier threat on the previous day to the life of Bhullan and other members of the prosecution side, that if they tried to plough the land somebody might be killed. But I think that such threats were mere words. However, by going in a body, whilst the accused were armed with lathis, and one carried a gun, (although I am doubtful whether any of the unknown assailants carried a spear as alleged, as no one has received any spear injury). At least it could have been anticipated by the members of the unlawful assembly, that grievous hurt with a weapon used for shooting would be the likely result of this unlawful assembly, and it could safely be inferred that the members would have at least known that a grievous injury was likely in prosecution of the common object of the assembly which was to punish Bhullan and Nazar and to drive them out of the land. However, so far as the inference that the members knew that a murder was likely in prosecution of the common object of the assembly, I think that the gap between ''might have known'' and ''knew to be likely'' remains.

In the case of "Allauddin Miyan" cited by Sri Satish Trivedi, two girls aged seven years and seven months had been killed, and yet the Apex Court had only confirmed the conviction of accused Nos. 1 and 2 u/s 302, I.P.C. for killing the two girls. However the Court had even set aside the conviction of the accused Nos. 3 to 6 u/s 326, I.P.C. and only convicted accused Nos. 3 and 4 who were armed with spears under Sections 447 and 148, I.P.C. and accused Nos. 5 and 6 who were armed with lathis under Sections 447 and 147, I.P.C. because in that case when the 6 accused had reached the house of Baharan Mian, P.W. 6, armed with deadly weapons, and when accused No. 3 began to untie the buffalo tethered in front of the house, Baharan had objected. However on seeing the accused advancing menacingly towards him, he ran into the adjoining room to arm himself with a spear. But his wife prevented him from leaving the room fearing that he would be killed. "Realising that P.W. 6 has entered the inner room and was prevented by his wife from coming out, accused No. 1 gave farsa blows on the head, abdomen and left thumb of Sahana Khatoon causing serious injuries. Accused No. 2 gave one farsa blow on the head of infant Chand Tara." But in ''Allauddin Miyan'' Section 326, I.P.C. had been excluded because after the target of attack P.W. 6, Baharan Miyan was beyond their reach and the common object having been frustrated, accused Nos. 1 and 2 took out their wrath on the innocent girls which was no part of the common object of the unlawful assembly. Accused Nos. 3 to 6 could therefore, not be convicted u/s 326, I.P.C. as "it was not necessary to kill the two girls who were not an hindrance to accused Nos. 1 and 2 accomplishing their common object."

In the present case, however, the deceased Ajmeri was present on the scene, when Nazaruddin fired the single shot killing him, on the exhortation of the acquitted co-accused Chuttan. The accused had issued a previous life threat that if the prosecution side so much as looked at the land they would be done to death, (though as I have mentioned above, this appeared more bluster than real). They had gone in a mob armed with lathis, with at least one gun and even though the attack on the deceased was sudden, whilst Shahabuddin and Chuttan and the others had only caused simple lathi injuries to the two injured. However, at least this can be inferred from the circumstances that in prosecution of the common object of the assembly to force Bhullan and Nazar to vacate the land, stop ploughing it, and to chastise them, at least the members of the assembly would have known that grievous injury to a member of the prosecution party was likely.

Likewise the case of Ram Narayan Sigh V State of U.P., (1981) 2 SCC 757 , cited by Sri Trivedi can be distinguished on facts. In that case the Hon''ble Supreme Court set aside the judgment of the High Court convicting the Appellants u/s 326/149, I.P.C., on the ground that the deceased Mainu Mandal appeared to have been speared to death by a pre-deceased non-Appellant Bhudeo Mandal when he tried to prevent the Appellants from irrigating their land, and this was the individual act of Bhudeo Mandal. In the words of the Apex Court, "Even on the prosecution case itself the occurrence took place as a result of an irrigation dispute and the Appellants were merely acting under a bona fide claim or belief that they had the right to irrigate the land." Hence it was not established that there was any unlawful assembly within the meaning of Section 141 of the Indian Penal Code, which was a pre-requisite for recording a conviction u/s 149, I.P.C. No such bona fide right or even a semblance of a claim to such a right for the accused exists in this case.

A question that may be raised is that if one accused is held guilty of the major offence of murder, and the Court records a finding that killing the deceased was the individual act of a particular accused, and only that some person could receive grievous hurt could have been anticipated by the members of the unlawful assembly in prosecution of their common object, or one that they knew likely to occur in prosecution of the common object, whether there it would be legitimate to convict the other accused (other than the main assailant who caused the fatal injuries) u/s 326 read with Section 149, I.P.C. In this regard the controversy has been considered and the legal position lucidly explained in Shambhu Nath Singh and Others Vs. State of Bihar, . In that case the deceased Baran Kahar was in possession of a plot of land on ''adh batai''. The commutation officer had commuted the rent to cash rent. Incensed by this step Shambhu Nath Singh and 13 others arrived on the scene, armed with diverse weapons. Shambhu Nath Singh fired several shots killing Baran Kahar on the spot. Nanhu Kahar also died later due to fire arm injuries. Ramdeni Kahar and Mst. Sukri received injuries. The Apex Court did not agree with the defence argument about the propriety of conviction of the accused other than the main accused Shambhu Nath Singh u/s 326 read with Section 149, as there was no evidence for showing that any of these accused had caused grievous hurt. The Apex Court saw no difficulty if some accused are convicted for the minor offence u/s 326, I.P.C. for the aggravated offence of murder, if the common object, of the unlawful assembly found by the courts below was to cause grievous hurt and death was caused by one of the members of the assembly. After considering the conflict of opinions of different High Courts on the point as to whether the other offenders can be convicted of a different or minor offence from that which the principal offender has been convicted, the Apex Court has held as follows in ''Shambhu Nath''s'' case:

If an unlawful assembly is formed with the common object of committing an offence and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed that offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. But ''members of an unlawful assembly may have a community of object upto a 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 of the Indian Penal Code may be ''different on different members of the same unlawful assembly''. Jahiruddin v. Queen Empress ILR Cal 306.

This was also the view taken in Sidhu Gope and Others Vs. Emperor, , which has held that:

The members of an unlawful assembly are not necessarily guilty of the same offence as the principal offender. It has to be determined with reference to the facts of the case, what offence the members must have known to be likely to be committed ; if such offence is a minor offence, then they should be convicted accordingly.

In this view of the matter whilst the conviction and sentences recorded by the trial court under Sections 302, 148 and 323/149 against the Appellant Nazaruddin stands, we think it would be proper to set aside the conviction of the Appellant Shahabuddin u/s 302/149, I.P.C. and instead to convict him u/s 326/149, I.P.C. However, we think that a deterrent sentence u/s 326, I.P.C. is not called for, as the matter is about 24 years old, and Shahabuddin would be about 64 years in age now. One similarly situated co-accused Chuttan has been acquitted although the trial court''s reason for doubting his presence on the spot mainly appears to be his age and sickness, as he was 75 years old on 5.11.1981, which was the date of his examination u/s 313, Cr. P.C.

Hence we think that a sentence of three years'' R.I. to Shahabuddin would meet the ends of justice u/s 326 read with Section 149, I.P.C. The conviction and sentence awarded to the Appellant Shahabuddin under the other provisions by the trial court is however affirmed. The various sentences awarded to both the Appellants are to run concurrently.

As learned Counsel for the Appellants were not appearing in this Court hence their bail was cancelled. Office report shows that they have been taken into custody on 22.11.2003.

The result is that the appeal filed by Appellant Shahabuddin is partly allowed. His conviction and sentence is modified as above.

The appeal filed by Appellant Nazaruddin fails and is dismissed. The Appellants are in jail. They should remain in custody to serve out the sentences awarded to them.