Penal Code, 1860: s.149 – Unlawful Assembly – In the instant case, Accused Nos. 1 and 2 are real brothers of the victim-deceased – Land dispute arose between accused persons and deceased – On the fateful day, deceased got to know that accused nos. 1 and 2 were getting the paddy crops sown by deceased – When deceased asked them to stop, appellant along with eight others assaulted him in which he lost his life – Trial Court convicted all the accused persons including appellant u/ss.302/149, IPC – High Court confirmed conviction and sentence though seven of accused persons died during its pendency, qua them appeal was dismissed – On appeal, held: When the presence of the accused at the place of occurrence as part of the unlawful assembly was not disputed it will be sufficient to hold him guilty even if no overt act was attributed to him on the principle of vicarious liability – As regards the question of effect and impact of reduction of the number of convicts pending an appeal owing to the death of co-convicts, s.394(1) CrPC provides that every appeal, except an appeal against the sentence of fine, would abate on the death of appellant as the sentence under appeal could no longer be executed – Abatement is different from acquittal – Mere fact that seven out of the ten convicts died, either during the pendency of appeal before the High Court or Supreme Court, could not be a reason to the non applicability of the provision for constructive/vicarious liability – With respect to the contention of appellant that conviction u/s.302/149 is liable to be altered as one u/s.304/149, it is evident that appellant was not charged with offence punishable u/s.302 IPC simpliciter rather convicted u/s.302/149 IPC – As the membership of the appellant is proved, the appellant cannot escape from the vicarious liability for the act committed by any one of the members of assemblage, if the common object of was to commit murder – Members of the unlawful assembly were carrying firearms and used them against the deceased – When someone who sustained gunshot injuries and profusely bleeding was attacked and the persons who attempted to come to his rescue were also attacked, the only inference that can be drawn from such circumstances is that the common object was to do away with the life of that person – Hence, the contention of appellant of altering the conviction is unsustainable – Code of Criminal Procedure, 1973 – s.394. Dismissing the appeal, the Court
HELD: 1. The first question is when once the prosecution established the membership of an accused / convict in the unlawful assembly whether the individual overt act also to be established by the prosecution to bring culpability on him on the principle of constructive/vicarious liability. According to this Court, no such burden can be fastened on the prosecution in view of the phraseology under Section 149, I.P.C. [Para 11][1020-D] Amerika Rai & Ors. v. State of Bihar; AIR 2011 SC 1379; Surendra & Ors. v. State of Uttar Pradesh AIR 2012 SC 1743; Yunis alias Kariya v. State of M.P. AIR 2003 SC 539; Amar Singh & Ors. v. State of Punjab (1987) 1 SCC 679; Nethala Pothuraju & Ors. v. State of Andhra Pradesh (1992) 1 SCC 49 – relied on.
2. The next question to be looked into to appreciate the contentions of the appellant is whether the reduction in number of the convicts below five on account of death of the co-accused got any impact or effect on the surviving convict(s) in the matter of consideration of his/their, vicarious liability in view of Section 149, I.P.C. There can be no two views on the position that reduction of number of accused/convicts in an appeal, below five on account of acquittal of co-accused/co-convicts and such reduction in numbers below five due to death of co-convicts are different and distinct. Going by Section 394(1), Cr.P.C. every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. Sub-section (2) thereof provides that every other appeal under Chapter-XXIX (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. The position is that every appeal, except an appeal against the sentence of fine, would abate on the death of the appellant, because the sentence under appeal in such circumstances, could ANR.
no longer be executed. This Court held that the mere fact that seven out of the ten convicts died, either during the pendency of Criminal Appeal No. 1510/1992 before the High Court or during the pendency of this appeal, could not be a reason, by that itself, to canvass non applicability of the provision for constructive/vicarious liability, arising out of the achievement of the common object by the unlawful assembly. [Paras 12, 14, 16] [1020-H; 1021A-B, G-H; 1023-A-B]
Harnam Singh v. State of Himachal Pradesh (1975) 3 SCC 343; Hari Prasad Chhapolia v. UOI (2008) 7 SCC
690 – referred to.
3. Now considering the question, whether the contention of the appellant that conviction under Section 302/149 is liable to be altered as one under Section 304, either Part-I or Part-II, read with Section 149, IPC. This Court took the note of the fact that the appellant was not charged with offence punishable under Section 302, IPC simpliciter. He was convicted under Section
302 and Section 149, IPC hence, in view of this Court with the concurrent finding about membership of the appellant in the unlawful assembly, the appellant cannot escape from the constructive/vicarious liability for the act committed by any one of the members of that assemblage by virtue of Section 149, IPC if the common object of the unlawful assembly was to commit murder and not causing grievous injury. This is so because the object of Section 149 is to make specific that person whose case comes within its gamut cannot be permitted to put forth a defence that he did not, with his own hand, commit the offence committed in prosecution of the common object of the unlawful assembly. [Para 17][1023-B-E]
Kuldeep Yadav & Ors. v. State of Bihar (2011) 5 SCC 324; Jai Karan & Ors. v. State of U.P. (2003) 12 SCC 655; Rakesh and Anr. v. State of Uttar Pradesh & Anr. (2021) 7 SCC 188 – relied on.
4. The evidence of PWs. 1 and 2 would reveal that the members of the unlawful assembly were carrying firearms and they used them against the deceased. The other lethal weapons were used against the deceased and also against them. When the fact is that the deceased sustained two gunshots and even thereafter, he was attacked by the members of the unlawful assembly, how the common object can be said to be one other than committing murder. When someone who sustained gunshot injuries and profusely bleeding was attacked again and the persons who attempted to come to his rescue were also attacked the only inference that can be drawn from such circumstances is that the common object was to do away with the life of that person. In the facts and circumstances, revealed from the evidence appreciated by the courts below the conclusion arrived by them that the unlawful assembly was having the common object to commit murder cannot be said to be perverse warranting interference by this Court in exercise of power under Article 136 of the Constitution of India. The very fact that the members of the unlawful assembly, ten in numbers assembled at the place armed not only with firearms but with other lethal weapons as well and the manner in which they committed the violence and the ultimate result would definitely lend support to the said finding. Therefore, there is absolutely no question of considering the contentions that the offence of culpable homicide falls either under 304 (Part I) or 304 (Part II). [Paras 20 and 21][1025-B-H; 1026-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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