1978 JTR(SC) 69
1978 AIR(SC) 1233 ; 1978 AllLJ 633 ; 1978 CrLJ 1101 ; 1978 3 SCC 526 ; 1978 SCC(Cri) 463 ; 1978 ShimLC 408 ; 1978 UJ 262 ; 1978 KHC 680
SUPREME COURT OF INDIA
S. Murtaza Fazal Ali, P.N. Shinghal, JJ.
Achhey Lal – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 223 of 1976
Decided On : 21-02-1978
Act Referred :INDIAN PENAL CODE : S.147, S.149, S.302, S.325
Indian Penal Code, 1860 - Section 149 - Detail narration of prosecution case - Absolutely clear that on facts - Appeal by Special Leave is directed against judgment of Allahabad High Court upholding conviction of appellant sections Indian Penal Code - Detailed narration prosecution case is contained in judgments of Courts below and it is not Necessary for us to repeat same all over again particularly when, in our opinion this appeal must succeed on a short point – Held, According to prosecution as many as named persons had taken part in assault on deceased of these persons have been acquitted by High Court but appeal was dismissed and conviction and sentences awarded by Sessions Judge were upheld appearing for appellant, submitted that in view of acquittal by High Court of named persons charge under Section must fail because there could not be an unlawful assembly where number of persons participating in offence is less than five - In our opinion contention raised by counsel is well founded and must prevail -There is not finding by High Court that after acquittal of accused unlawful assembly consisted of five persons or more, known or unknown, identified or unidentified - In these circumstances therefore it is absolutely clear that on facts of present case provisions of Sections and - cannot be invoked - Appeal allowed
Indian Penal Code, 1860 - Section 149 - Detail narration of prosecution case - Absolutely clear that on facts - Appeal by Special Leave is directed against judgment of Allahabad High Court upholding conviction of appellant sections Indian Penal Code - Detailed narration prosecution case is contained in judgments of Courts below and it is not Necessary for us to repeat same all over again particularly when, in our opinion this appeal must succeed on a short point – Held, According to prosecution as many as named persons had taken part in assault on deceased of these persons have been acquitted by High Court but appeal was dismissed and conviction and sentences awarded by Sessions Judge were upheld appearing for appellant, submitted that in view of acquittal by High Court of named persons charge under Section must fail because there could not be an unlawful assembly where number of persons participating in offence is less than five - In our opinion contention raised by counsel is well founded and must prevail -There is not finding by High Court that after acquittal of accused unlawful assembly consisted of five persons or more, known or unknown, identified or unidentified - In these circumstances therefore it is absolutely clear that on facts of present case provisions of Sections and - cannot be invoked - Appeal allowed
JUDGMENT
FAZAL ALI, J.:— This appeal by Special Leave is directed against the judgment of the Allahabad High Court upholding the conviction of the appellant Achhey Lal under sections 302/149, 325/149 and 147 of the Indian Penal Code. The detailed narration of the prosecution case is contained in the judgments of the Courts below and it is not necessary for us to repeat the same all over again particularly when, in our opinion, this appeal must succeed on a short point. According to the prosecution as many as 15 named persons had taken part in the assault on the deceased. Of these 15 persons, 14 have been acquitted by the High Court, but the appeal of Achhey Lal was dismissed and conviction and sentences awarded by the Sessions Judge were upheld. Mr. Goel, appearing for the appellant, submitted that in view of the acquittal by the High Court of 14 named persons, the charge under Section 149 I. P. C. must fail because there could not be an unlawful assembly where the number of persons participating in the offence is less than five. In our opinion the contention raised by the learned counsel is well founded and must prevail. There is not finding by the High Court that after the acquittal of the accused the unlawful assembly consisted of five persons or more, known or unknown, identified or unidentified. In these circumstances, therefore, it is absolutely clear that on the facts of the present case the provisions of Sections 149 and 147 I. P. C. cannot be invoked.
2. For these reasons the appeal is allowed. The appellant is acquitted for all the charges and he is directed to be released forthwith, as no individual act has been assigned to him.
Appeal allowed.
For Citation : AIR 1978 SC 1233