Held: Inconsistencies in the evidence of two prosecuting witness being rustic villagers not fatal – Their evidence that the appellants were members of the unlawful assembly, though no specific role attributed to them of assaulting the deceased – It is not necessary that such a person, for being convicted, must have actually assaulted the deceased – Trial court’s observation that no fatal weapons were used by the complainant party in assaulting the accused persons, whereas accused used fatal weapons, not correct since injuries sustained by one of the accused was by a sharp weapon – Furthermore, witnesses are interested witnesses – Non-explanation of injuries on the persons of the accused creates a doubt, on the prosecution case – Moreso, cross case was registered against the complainant party – Defence by accused that the complainant party started assaulting them resulting into a free fight in which the persons from both the sides received injuries and one person of complainant’s side died – Entire incident arose on account of the happening on the previous day-buffalo spoiling the taparia built by accused – No clarity as to whether the common object of the unlawful assembly was to cause the death of the deceased – Prosecution failed to prove beyond reasonable doubt that the unlawful assembly had an intention to cause the death of deceased – Appellants entitled to benefit of doubt – Thus, the conviction u/s. 302 not sustainable and altered to one under s. 304 Part-II – Appellants sentenced to rigorous imprisonment for 7 years. [Paras 15, 19, 20, 23-27]
Penal Code, 1860 – s. 149 – Unlawful assembly – Scope and ambit of s. 149 :
Held: Every person constituting an unlawful assembly need not play an active role for convicting him with the aid of s. 149 – Prosecution has to establish that a person has to be one of the persons constituting the assembly and that he had entertained the common object along with the other members of the assembly, as defined u/s. 141 – Whoever being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of unlawful assembly. [Para 14] LISTS OF CITATIONS AND OTHER REFERENCES
Nand Lal and Others v. State of Chhattisgarh 2023 SCC OnLine SC 262; Masalti v. State of U.P. [1964] 8 SCR 133; Lakshmi Singh and Others v. State of Bihar (1976) 4 SCC 394; State of Rajasthan v. Madho and Another 1991 Supp (2) SCC 396; State of M.P. v. Mishrilal (Dead) and Others (2003)
9 SCC 426; Nagarathinam and Others v. State Represented by Inspector of Police (2006) 9 SCC 57 – referred to.
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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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