Point of Law: Criminal Law - Unlawful assembly - Conviction upheld - While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in unlawful assembly may fasten vicariously criminal liability under Section 149.

JUDGMENT :

Syed Aftab Husain Rizvi, J.

1. Heard Sri Noor Mohammad, learned counsel for the appellants no. 2 and 3 and Sri H.M. Singh, learned Senior Advocate for the appellants no. 4 and 5 assisted by Sri Vidyanand Tripathi, Advocate and Sri Ashwani Prakash Tripathi, learned A.G.A. for the State and perused the record.

2. This criminal appeal has been filed against the common judgment and order dated 04.05.2007 passed by the Additional Session Judge, Court No.1, District-Meerut in S.T. Nos. 545 of 2004 (State vs. Mobin @ Nanha, Hasrat, Anees, Kamil, Istakbaal) Case Crime No. 83 of 2004, under Sections 148, 149, 302/149, 307 I.P.C., S.T. No.588 of 2004 (State vs. Mobin @ Nanha) Case Crime No.103 of 2004, under Sections 25 of Arms Act, S.T. No.589 of 2004 (State vs. Kamil) Case Crime No.104 of 2004, under Section 25 of Arms Act, S.T. No.568 of 2004 (State vs. Anees) Case Crime No.91 of 2004, under Sections 25 of Arms Act and S.T. No.669 of 2004 (State vs. Istakbaal) Case Crime No.90 of 2004, under Section 25 of Arms Act, Police Station-Bhawanpur, District-Meerut, convicting the accused-appellants (Mobin @ Nanha, Hasrat, Anees, Kamil, Istakbaal) under Section 147, 148, 307, 302 read with Section 149 I.P.C. and sentencing each of them to undergo one year imprisonment under Section 147 I.P.C. to undergo two years imprisonment, under Section 148 I.P.C. to undergo seven years imprisonment under Section 307 I.P.C. to undergo life imprisonment under Section 302 read with Section 149 I.P.C.. All the sentences to run concurrently.

3. In brief, the prosecution case is that on 19.04.2004 at about 9:20 a.m. Shafayat (informant) his brother Shahadat along with Kamil, Nanhi the sister of Kamil, and Matloob were going to the Court on their date and when they were standing near Madarsa on the Rasta of Naglasahu waiting for the bus to go Meerut, Mobin, Hasrat, Anees, Kamil, and Istakbaal holding pistols in their hands came from behind the Madarsa and started firing on them. To save their lives, they ran here and there. Shahadat the brother of the informant and Kamil ran inside the Madarsa, chasing them all the five accused entered into Madarsa and riddled Shahadat the brother of the informant with bullets. The accused threatened them with death while firing shots and said that today they have taken the revenge of the murder of Nafees. Shahadat died on the spot. Due to firing by the accused the road was blocked and the passersby ran away in the fields to save their lives.

The report of the above incident was registered on 19.04.2004 at 10:30 a.m. on the application of Shafayat as Crime No. 83 of 2004 under Sections 147, 148, 149, 307, 302, 506 I.P.C. and 7 Criminal Law Amendment Act at Police Station-Bhawanpur. The investigation of the case was taken over by S.O. Bhawanpur, C.P. Katheriya. He recorded the statements of the complainant and the eyewitnesses, visited the spot, and prepared the site plan. From the place of occurrence, 4 empty cartridge, 1 bullet, and 1 live cartridge were also taken into possession, and a memo was prepared. He also collected bloodstained and plain soil from the spot and sealed it in separate containers and prepared a memo. The inquest proceeding of the dead body of deceased Shahadat was conducted by S.I. Ram Sevak under the directions of investigating office, related papers were also prepared and the body was sealed and sent for postmortem examination. Investigating Officer further recorded the statements of other witnesses and after completion of the investigation submitted a charge-sheet against all 5 accused Mobin @ Nanha, Hasrat, Anees, Kamil and Istakbaal under Sections 147, 148, 149, 307, 302, 506 I.P.C., and 7 Criminal Law Amendment Act.

During the course of investigation on 04.05.2004, a police party led by S.O. C.P. Katheriya at 7:30 p.m. arrested accused Istakbaal and Anees and recovered one country made pistol from each, alleged to be used in the crime. In the barrel of each country made pistols one live cartrid