Penal Code, 1860 – ss.147/148/324/302/201 r/w 149 – Unlawful assembly – When not part of – Land dispute – Victim died in a mob attack – 32 accused persons convicted and sentenced to life imprisonment – High Court convicted some while gave benefit of doubt to others – SLPs by unsuccessful appellants dismissed – However, notice issued in appellant’s case – Held: Only role assigned to the appellant was that of pointing out the place where the victim was hiding – Family members of the deceased never even pointed a finger at the appellant – His presence at the site is explained – His house was almost adjacent to where the deceased was hiding – He did not come along with the mob – He was carrying no weapon, he did not assault anybody – Finding of his accompanying the mob is not sustainable – Mere fact that the appellant was not brave enough to conceal where the victim was hiding did not make him a part of the unlawful assembly – Acquitted.
Allowing the appeal, the Court
HELD : 1.1 PW-1, the informant, attributed to the appellant the role of pointing out the location of the deceased. Nothing more is stated qua the appellant. Further, PW-8 was not a witness who had seen the incident but he believed what others said and narrated the same. Thus, the reliance placed in the impugned judgment on the testimony of PW-8 to rope in the appellant under Section 149 of the IPC cannot be sustained. This is more so as PW-7 is also a hostile witness. The mere fact that the appellant was not brave enough to conceal where the victim was hiding did not make him a part of the unlawful assembly. The presence of the appellant is explained at the early hours in the morning because of his house being almost adjacent to where the deceased was hiding. He certainly did not come along with the mob. He was carrying no weapon and he did not assault anybody. The finding of his accompanying the mob is not sustainable on the basis of the evidence. The only evidence of his involvement is that he pointed to the house where the victim was hiding. Given that a murderous mob fully armed was hunting for him, the appellant at best can be said not to be brave enough to conceal the deceased or even to have not pointed out where he was, but that by itself cannot rope in the appellant under Section 149 of the IPC. [Paras 5, 9, 10 and 11][447-A-B; 448-D-E; 448-E-F; 449-B-D]
1.2 Taking into consideration the inconsistency in the testimonies – inasmuch as the family members never even pointed a finger at the appellant as also some of the other witnesses, while the witnesses who did point a finger only assigned the role of pointing out the place where the victim was hiding, coupled with his natural presence at site, it cannot, thus, be said that by any stretch of imagination the case against the appellant has been proved beyond reasonable doubt or for that matter really no case seems to have been proved against the appellant given the role assigned to him in the testimony of the witnesses. The appellant is entitled to a clean acquittal in the given facts. The conviction under Section 147/148/302/201/149 is set aside [Paras 11, 14] [449-G-H; 450-A-B]
Subal Ghorai v. State of West Bengal (2013) 4 SCC
607 : 2013 (5 ) SCALE 275; Ranjit Singh v. State of Punjab and Ors (2013) 16 SCC 752 : [2013] 13 SCR 633; C. Magesh and Ors. v. State of Karnataka (2010)
5 SCC 645 : [2010] 5 SCR 623 – relied on.
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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