Summary
Ten persons were convicted under Section 302 read with Section 149 IPC for killing Dalip Singh in a 1980 land dispute in Rampur district, in which the accused fired on him and attacked him and his sons. Most of the co-convicts died while the appeals were pending. The surviving appellant, said to have carried a spear, sought conversion of his conviction to one under Section 304 IPC, arguing that no fatal injury was attributable to him and no weapon was recovered. The Supreme Court dismissed the appeal. Once membership of an unlawful assembly is proved, no individual overt act need be shown. Abatement of appeals on the death of co-convicts is not acquittal and does not shrink the assembly below five. Firing at the victim, attacking him again after he fell and assaulting his rescuers showed a common object to kill, and no exception to Section 300 was made out.
Issues
- Whether a member of an unlawful assembly can be convicted under Section 302/149 IPC without proof of an individual overt act.
- Whether the death of co-convicts during the appeals, reducing the surviving convicts below five, defeats the application of Section 149 IPC.
- Whether the conviction should be altered from Section 302/149 to Section 304/149 IPC.
Provisions considered
- Section 149, Indian Penal Code, 1860Presence in the unlawful assembly sharing its common object makes a member vicariously liable without proof of an overt act; the common object is inferred from weapons, conduct and result. (¶¶ 11, 17, 18, 20)
- Section 394, Code of Criminal Procedure, 1973An appeal abates on the appellant's death because the sentence cannot be executed; abatement is distinct from acquittal, and its principles also govern appeals under Article 136. (¶¶ 14, 15, 16)
- Sections 300 and 304, Indian Penal Code, 1860Without bringing the case within any exception to Section 300, there was no basis to reduce the offence to culpable homicide not amounting to murder. (¶ 21)
Held
- Once membership of an unlawful assembly is established, the prosecution need not prove an individual overt act to fix vicarious liability under Section 149 IPC. (¶¶ 11, 17)
- Reduction of the number of convicts below five by acquittal may defeat Section 149, but reduction by death of co-convicts and consequent abatement of their appeals does not, since abatement is not acquittal. (¶¶ 12, 13, 14, 15, 16)
- Non-recovery of weapons does not discredit reliable injured eyewitnesses, and their relationship to the deceased is no ground to disbelieve them. (¶ 19)
- Firing at the deceased, attacking him again after he fell and assaulting those who came to rescue him established a common object to commit murder; as no exception to Section 300 was established, alteration to Section 304 did not arise. (¶¶ 20, 21)
Result
Appeal dismissed; the appellant's conviction and sentence under Section 302/149 and other provisions of IPC upheld; the appeal of the co-appellant who died had abated.