Penal Code, 1860 – s.149 – Applicability of – High Court set aside the respondent-accused’s conviction for the offence punishable u/s.302/149, IPC on the ground that the initial chargesheet was filed only against two accused persons (one of them being the respondent) and the remaining three persons were subsequently arrayed as the accused and are being tried separately thus, s.149, IPC shall not be attracted – Held: When five persons were specifically named in the FIR and are facing the trial though separately, s.149 IPC would be attracted – Thus, once the respondent was found to be member of the unlawful assembly and he actually participated in commission of the offence, then he shall also be liable to be convicted for the offence u/s.302, IPC with the aid of s.149, IPC, even for the act of the another accused who gave the fatal blow – High Court erred in observing that no case is made out to invoke s.149, IPC – Impugned judgment of the High Court set aside – Judgment of the Trial Court convicting the respondent for offences u/ss. 147, 323 and 302/149, IPC restored – Code of Criminal Procedure, 1973 – s.319.
Criminal Law – Delay in lodging FIR – Plea of the accused that there was delay of 3 ½ days in lodging FIR – Held: Delay sufficiently explained – No reason to give benefit of doubt to the accused.
Penal Code, 1860 – s.147 – Application of – Discussed.
Allowing the appeal, the Court
HELD: 1.1 The High Court has not properly considered the fact that in the report/FIR there were specific allegations against five accused persons and five accused persons were named in the FIR. However, the investigating officer chargesheeted only two persons. The remaining three accused persons came to be added as accused by the learned trial Court while allowing the application under Section 319 Cr.P.C. As they absconded and therefore their trial came to be ordered to be separated and it is reported that the trial against the remaining accused is still pending who are also facing the charges for the offence under Section 302/149 IPC. In that view of the matter when five persons were specifically named in the FIR and five persons are facing the trial may be separately, Section 149 IPC would be attracted. The essential question in a case under Section
147 is whether there was an unlawful assembly as defined under Section 141, I. P. C., of five or more than five persons. The identity of the persons comprising the assembly is a matter relating to the determination of the guilt of the individual accused, and even when it is possible to convict less than five persons only, Section
147 still applies, if upon the evidence in the case the Court is able to hold that the person or persons who have been found guilty were members of an assembly of five or more persons, known or unknown, identified or unidentified. In view of the above facts and circumstances of the case the High Court has seriously erred in observing that no case is made out to invoke Section
149 IPC. [Paras 10, 10.1][361-A-C, F-H; 362-A]
Bharwad Mepa Dana & Anr. Vs. State of Bombay 1960
(2) SCR 172 – relied on.
1.2 Once the respondent – accused was found to be member of the unlawful assembly of more than five persons and he actually participated in commission of the offence may be the fatal blow might have been given by the another accused, in the present case ‘BS’, still with the aid of Section 149 IPC, Respondent Accused can be convicted for the offence under Section 302 IPC with the aid of Section 149 IPC. The case would certainly fall within first part of Section 149 IPC. As per first part of Section
149 IPC if an offence is committed by any member of unlawful assembly in prosecution of the common object of that assembly, every person who, at the time of that offence, is a member of the same assembly, is guilty of that offence. [Para 10.2][362-B-C]
Mizaji and Anr. Vs. The State of U.P. [1959] Supp. 1 SCR 940 – relied on.
1.3 The submission on behalf of the accused that there was a delay of 3 ½ days has been elaborately dealt with and considered by the learned trial Court in detail. A proper explanation has been given by the complainant. Immediately after the occurrence the injured were taken to the hospital for treatment. The condition of ‘BS’ was serious. Complainant concentrated on his treatment. Another injured ‘NS’ also remained busy for the treatment. Thus, when the delay has been sufficiently and properly explained, there is no reason to give benefit of doubt to the accused on the aforesaid ground that there was a delay of 3 ½ days in lodging the FIR. [Para 11.1][363-G-H; 364-A-B]
1.4 As per the medical opinion and the deposition of doctor the death occurred due to injury no.9 from the shock of wound at spinal bone of neck. Though the injury no.9 was caused by the accused ‘BS’, the respondent accused being a part of the unlawful assembly and who also participated in commission of the offence, he shall also be liable to be convicted for the offence under Section
302 IPC with the aid of Section 149 IPC, even for the act of the accused ‘BS’ who gave the fatal blow. The impugned judgment and order passed by the High Court acquitting the respondent – accused for the offence under Section 302 under Section 149 IPC is hereby quashed and set aside. The judgment and order passed by the learned Trial Court convicting the respondent – accused for the offence under Sections 147, 323 and 302/149 IPC is restored. The respondent no.2 – accused to undergo life imprisonment for the offence under Section 302/149 IPC. [Paras 11.2, 12][364-G-H; 365-A-B, C-D]
Roy Fernandes vs. State of Goa and others, (2012) 3 SCC 221 : [2012] 1 SCR 477 – held inapplicable. State of Rajasthan vs. Ramanand (2017) 5 SCC 695 : [2017] 3 SCR 981 – referred to.
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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