Summary
Five persons named in an FIR assaulted two men with lathis; one victim died of a neck injury inflicted by an accused who died during trial. Only two were charge-sheeted; the other three, added under Section 319 CrPC, absconded, so the surviving accused was tried separately and convicted under Sections 147, 323 and 302/149 IPC. The High Court set aside the Section 302/149 conviction for want of an assembly of five. The Supreme Court restored the life sentence: where five persons were named in the FIR and all face trial, even separately, Section 149 is attracted; the identity or separate trial of other members does not negate an unlawful assembly; and under the first part of Section 149 every member is liable for a murder committed in prosecution of the common object though another gave the fatal blow.
Issues
- Whether Section 149 IPC can be invoked against an accused where the police charge-sheeted only two of five persons named in the FIR and the remaining three, added under Section 319 CrPC, absconded and are being tried separately.
- Whether an accused who was a member of the unlawful assembly and participated in the assault is liable under Section 302 read with Section 149 IPC when the fatal blow was given by a co-accused who died during trial.
- Whether the delay in lodging the FIR and alleged contradictions in the injuries justified acquittal even under Section 323 IPC.
Provisions considered
- Sections 141, 147 and 149 (first part), Indian Penal Code, 1860An unlawful assembly requires five or more persons, known or unknown; where five were named in the FIR and all are facing trial, the fact that fewer were charge-sheeted or that some are tried separately does not defeat Section 149. Under its first part every member is guilty of an offence committed by any member in prosecution of the common object, as explained in Mizaji v. State of U.P. (¶¶ 10, 10.1, 10.2, 10.3)
- Section 319, Code of Criminal Procedure, 1973The three accused left out by the police were summoned as additional accused on the High Court's remand; their absconding led to separation of the trial but did not reduce the assembly below five. (¶¶ 2.2, 10)
- Sections 302 and 323, Indian Penal Code, 1860The deceased died of injury no. 9 to the neck caused by the co-accused; the respondent, a member of the assembly who participated in the assault, is liable for murder with the aid of Section 149, and the conviction under Section 323 was also sustained. (¶¶ 10.2, 11.2)
Held
- The High Court erred in holding that Section 149 was not attracted because only two persons were charge-sheeted and the others were tried separately; the FIR named five persons and all five are facing trial for Section 302/149, so there was an unlawful assembly of five. As held in Bharwad Mepa Dana, the essential question is whether there was an assembly of five or more persons, known or unknown, and the identity or non-conviction of some members does not permit the convicted member to deny the assembly. (¶¶ 9, 10, 10.1)
- Once the respondent was a member of the unlawful assembly and participated in the offence, he is liable for the murder under the first part of Section 149 even though the fatal blow was given by the co-accused Bhupendra Singh, the offence having been committed in prosecution of the common object; Roy Fernandes, which dealt with the second part of Section 149, is distinguishable. (¶¶ 10.2, 10.3, 11.2)
- The delay of three and a half days in lodging the FIR was properly explained by the complainant's preoccupation with treatment of the seriously injured, and the eyewitnesses and the doctor established the injuries, so no benefit of doubt arises even on the Section 323 conviction, which the accused was heard on despite not having appealed. (¶¶ 11, 11.1, 11.2)
Result
Appeal allowed; High Court judgment dated 20.11.2018 acquitting the respondent under Section 302 read with Section 149 IPC quashed and set aside; trial court's conviction under Sections 147, 323 and 302/149 IPC and sentence of life imprisonment restored; respondent to surrender within three weeks to serve the remaining sentence, failing which to be taken into custody.