Conviction With Aid Of Section 149 IPC Unsustainable When Co-Accused Are Acquitted Making Membership Of 'Unlawful Assembly' Less Than 5 And There Are No Unidentified Accused : Supreme Court

The bench of Justices Ajay Rastogi and AS Oka was considering a criminal appeal against Madhya Pradesh High Court's order dated June 25, 2018, wherein the High Court had upheld the appellants' conviction u/s 325 r/w Section 149 of IPC and sentence of one year RI and a fine of Rs.500/­ and in default with imprisonment for one month.

A chargesheet was submitted against the appellants and 18 other accused(s) u/s 148, 294, 341/149, 325/149 (2 counts), 323/149 (4 counts), 324/149 and 427/149 of IPC. The Trial Court on November 12, 2008, convicted the appellants under Sections 148, 325/149 and 323/149 IPC.

Out of the 20 accused(s) who were chargesheeted and faced trial, the Trial Court acquitted 17 out of 20 accused(s) and had convicted 3 persons. The conviction was affirmed by the Sessions Judge and later by the High Court by dismissing the appellants' revision.

Submission of Counsels

Appellants' counsel submitted that the charge sheet was originally filed against 20 persons and all of them faced trial and 17 out of 20 accused persons were acquitted by the Trial Court by order dated November 12, 2008. Counsel further submitted that no further appeal/revision was preferred by the prosecution against the judgment of acquittal passed by the Trial Court against those 17 accused persons who faced trial. It was also counsel's contention that 3 out of 20 accused persons were convicted for offence under Sections 148, 325/149 and 323/149 IPC and it was not the case of the prosecution that there were other unnamed/unknown persons who could not be traced/charged other than the persons who faced trial.

To contend that the conviction was unsustainable in law, the counsel while referring to section 149 of IPC submitted that in the instant case out of 20 accused(s) three have been convicted and the essential condition of unlawful assembly is that it must be of five or more persons, as contemplated under Section 141 IPC.

Counsel for the respondent submitted that 20 persons were charge­sheeted who faced trial and thus merely because final conviction was of three accused persons under Sections 325 with the aid of Section 149 IPC, the requirement of Section 141 which contemplates unlawful assembly of five or more persons was being completely meted out.

Supreme Court's Analysis

The bench while allowing the appeal also laid down the essential ingredients of Section 149 IPC and said,

"It may be noticed that the essential ingredients of Section 149 are that the offence must have been committed by any member of an unlawful assembly, and Section 141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. To say in other words, it is an essential condition of an unlawful assembly that its membership must be five or more.

At the same time, it may not be necessary that five or more persons necessarily be brought before the Court and convicted. Less than five persons may be charged under Section 149 if the prosecution case is that the persons before the Court and other numbering in all more than five composed an unlawful assembly, these others being persons not identified and unnamed."

The Court further observed :

"However, in the instant case, the persons are specifically named by the complainant and against them, after the investigation, charge¬sheet was filed and all the 20 accused persons faced trial. It was not the case of the prosecution that there are other unnamed or unidentified persons other than the one who are charge¬sheeted and faced trial. When the other co¬accused persons faced trial and have been given benefit of doubt and have been acquitted, it would not be permissible to take the view that there must have been some other persons along with the appellant in causing injuries to the victim. In the facts and circumstances, it was as such not permissible to invoke Section 149 IPC"

Citation: 2022 LiveLaw (SC) 22

Case no. and Date: CrA 30 OF 2022 | 5 Jan 2022

Coram: Justices Ajay Rastogi and Abhay S. Oka

Counsel: Adv Deeksha Mishra for appellant, Dy. AG Veer Vikrant Singh for Stat

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