The court clarified that participation in an unlawful assembly does not require each member to commit an overt act, and distinguished between intention and knowledge in culpable homicide cases.

JUDGMENT :

Hon’ble Rajiv Gupta, J.

1. Heard Shri Saurabh Basu, learned counsel for the appellants, Shri Purshottam Upadhyay, learned AGA for the State and perused the record.

2. The instant criminal appeal as well as government appeal has been filed against the judgment and order dated 18.02.1983 passed by 4th Additional Sessions Judge, Mirzapur in Sessions Trial No. 134 of 1981 (State of U.P. Vs. Nanhak and 4 Others), arising out of Case Crime No. 109 of 1979, Police Station Kotwali Dehat, District Mirzapur, by which the appellants have been convicted for the offence under Section 147 IPC and awarded the sentence of one year rigorous imprisonment, under Section 325/149 IPC and awarded the sentence of five years rigorous imprisonment with a fine of Rs.500/-, under Section 323/149 IPC and awarded the sentence of six months imprisonment with a fine of Rs.500/-and under Section 426/149 IPC and awarded the fine of Rs.50/-with default stipulations.

3. Apart from the aforesaid criminal appeal, State of U.P. has also preferred a government appeal against the said judgment and order with the prayer to reverse the acquittal of the accused-appellants under Section 302/149 IPC and convict them for the said offence.

4. During the pendency of the aforesaid appeals, accused-appellants Purshottam and Hira Lal have passed away and as such, criminal appeal as well as government appeal, qua the said accused persons, has been dismissed as abated.

5. Since both the appeals arise from the same judgment and order, they are being taken up together and disposed of by a common judgment.

6. Shorn of unnecessary details, the prosecution case is unravelled in the written report lodged by one Ramdev, which was registered vide Case Crime No. 109 of 1979, under Sections 147, 149, 307, 325, 426 IPC, Police Station Kotwali Dehat, District Mirzapur registered vide G.D. Report No. 21. The written report, on the basis of which, chik FIR has been registered, has been marked as Exhibit Ka-1, prepared by PW-10 Juit Ram at the relevant date and time.

7. The allegations made in the FIR are that first informant Ramdev is a permanent resident of Village Mahkuchhwa, Police Station Kotwali Dehat, District Mirzapur. It is further stated that on 08.05.1979, accused Nanhak had cut the Bamboo belonging to Khetal and this fact was disclosed to Khetal by the first informant Ramdev, consequent to which, Nanhak got angry with Ramdev and threatened to teach him a lesson.

8. It is further stated that on 09.05.1979 at about 6:00 PM, when the first informant Ramdev was guarding his mango crop, which he had purchased from one Ram Khelawan, accused persons Nanhak, Purshottam, Hira Lal, Baul and Bihari, armed with lathi danda, reached there and started, felling mangoes and further hurled abuses to Ramdev. On being resisted not to abuse and pluck the mangoes, Hira Lal exhorted the accused persons to assault and kill the first informant Ramdev. On his exhortation, all the assailants with a common object, started assaulting Ramdev with lathi danda. On alarm being raised, Khetal, Sukhdev, Shiv Kumari and many other persons rushed to rescue Ramdev, however, the assailants started assaulting them also, consequent to which, Khetal, Sukhdev and Shiv Kumari received injuries. On alarm being raised, the assailants made their escape good.

9. On the basis of the said allegations, the first informant/ injured Ramdev got a written report scribed by one Lallan (PW-4) and reached the Police Station and handed over the said written report to the Head Moharrir Juit Ram (PW-10), who, on the basis of the said written report, lodged the chik FIR, which has been proved and marked as Exhibit Ka-18. Corresponding G.D. Report No.21 was also drawn, which has been proved and marked as Exhibit Ka 21. Khetal, Sukhdev and Shiv Kumari, who also received injuries in the said incident, had reached the Police Station alongwith Ramdev, who was also an injured and their Chitthi Majroobi was prepared, which has been proved and mark