Summary
The Supreme Court upheld the appellant's conviction under Sections 148 and 302/149 IPC for a murder by his father and brothers, though he inflicted no injury and only fired a country-made pistol into the air to scare off rescuers so the assailants could escape. Section 149 imposes vicarious liability on every member of an unlawful assembly; consistent eyewitness evidence established his membership, and lapses such as non-examination of the FIR scribe and non-recovery of the weapon did not undermine the conviction.
Issues
- Whether the prosecution proved beyond reasonable doubt the appellant's guilt under Sections 148 and 302/149 IPC when he inflicted no injury and only fired into the air.
- Whether non-examination of the FIR scribe and of another eyewitness, and non-recovery of the pistol or cartridges, were fatal to the prosecution.
Provisions considered
- Section 141, Indian Penal Code, 1860Explained as defining an unlawful assembly of five or more persons whose common object is to commit an illegal act by criminal force; the five accused, armed and acting to eliminate the deceased, formed such an assembly. (¶¶ 25, 27)
- Sections 146 and 148, Indian Penal Code, 1860Rioting arises when force or violence is used by an unlawful assembly or any member in prosecution of the common object; the appellant, armed with a country-made pistol as a member of the assembly, was rightly convicted under Section 148. (¶¶ 28, 33)
- Section 149, Indian Penal Code, 1860Read as making every member of an unlawful assembly guilty of an offence committed by any member in prosecution of the common object or known to be likely; it creates constructive liability, and whether the accused caused injury is irrelevant once membership is shown. (¶¶ 25, 29, 30, 30.1, 31, 32)
- Section 302, Indian Penal Code, 1860The homicidal death caused by the co-accused with sharp weapons was proved by ocular and medical evidence; the appellant was liable for it through Section 149. (¶¶ 24, 25, 33)
Held
- The eyewitness accounts of the informant and another son of the deceased, corroborated by the post-mortem evidence of multiple incised and stab wounds caused by sharp-edged weapons, established that the co-accused murdered the deceased, while the appellant, armed with a country-made pistol, fired into the air to frighten those rushing to rescue him and enabled the assailants to escape. (¶¶ 22, 23, 24)
- Section 149 IPC does not create a separate offence but creates constructive or vicarious liability of every member of an unlawful assembly for an offence committed in prosecution of the common object; whether the accused caused any injury is not relevant, the question being whether he was a member of the unlawful assembly (following Krishnappa v. State of Karnataka and Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel). (¶¶ 29, 30, 30.1, 31)
- Where the charge is under Section 149 IPC no overt act need be attributed to a particular accused; presence as part of the unlawful assembly suffices (following Yunis v. State of M.P.). Lacunae such as non-examination of the FIR scribe, non-examination of an uncle of the informant who had since been killed in a case in which the appellant was himself an accused, and non-recovery of the pistol or any cartridge did not detract from unshaken eyewitness testimony of the appellant's membership of the assembly. (¶ 32)
- The trial court rightly convicted the appellant under Section 148 and Section 302 read with Section 149 IPC and the High Court rightly affirmed the conviction. (¶ 33)
Result
Appeal dismissed; conviction and sentence of life imprisonment under Section 302/149 IPC and the sentence under Section 148 IPC upheld.