S.149 IPC | Accused Not Absolved From Offence Committed By Unlawful Assembly Based On Mere Plea Of 'Not Being Armed': Bombay High Court

A division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase sitting at Aurangabad dismissed an appeal filed by five persons were convicted for offences punishable under Sections 144 (joining unlawful assembly armed with deadly weapon), 148 (rioting, armed with deadly weapon),and 302 (punishment for murder) read with 149 of the IPC.

“Once the case of a person falls within the ingredients of Section 149 IPC, the question that he did nothing on his own, would be immaterial, as everybody is considered to be aware of the probable and natural outcome of the acts with which they have formed unlawful assembly. Mere plea ‘not being armed’ would not absolve a person from liability. Once their gathering has been demonstrated to have indulged in unlawful act, sharing of common intention comes into play”, the court held.

Section 149 IPC makes every person who is member of unlawful assembly at the time of committing of the offence, guilty of that offence.

The case originated from a dispute between the informant, Devidas Bhujbal, and three men over a field for cultivation. Deceased Sudhakar, who was the brother of the informant, was assisting him in cultivating the field, leading to frequent quarrels between Sudhakar and the accused. On the morning of August 19, 2011, a quarrel ensued between Sudhakar and the five accused, and the informant intervened and took Sudhakar back home. However, later in the day, another quarrel erupted.

According to the prosecution's case, at around 12:30 p.m., Sudhakar and the accused were engaged in a heated argument in front of Bhaskar's house. The informant received a phone call from another witness, Ganesh Bhujbal, who informed him about the ongoing quarrel. The informant rushed to the scene and witnessed the accused brutally assaulting Sudhakar. Accused Dattarao, armed with a sickle, and accused Digambar, carrying a knife, were the main assailants. When his wife tried to intervene accused Meenabai and another accused Sojarbai indulged in scuffle with her. Sudhakar succumbed to the injuries on the spot. The accused were arrested and charged. The trial Judge found the accused guilty and convicted them.

The appellants, represented by Advocates Mahesh P Kale and Sharda P Chate, argued that the prosecution's evidence, particularly that of the eyewitnesses, was untrustworthy due to contradictions and inconsistencies. They also argued that accused Hanuman, Meenabai and Sojarbai are wrongly held guilty as no overt act is attributed to them and no injury is caused at their instance, and thus, they could not be held guilty under Section 149 of IPC.

Assistant Public Prosecutor AV Deshmukh submitted that the eyewitness accounts were consistent, and the occurrence of the assault was not doubtful. He maintained that the charges against all the appellants were proven beyond a reasonable doubt, and the common object of the unlawful assembly justified their conviction under Section 149 of IPC.

The court clarified that under Section 149 of IPC, a person could be held guilty if they were part of an unlawful assembly and shared the common object, even if they did not commit an overt act.

“After the initial instance of quarrel between deceased and Dattarao, subsequently also when deceased allegedly left house, all five appellants had come there. They are apparently five in number. Some of them were armed. Though Dattarao and Digambar have mounted assault and dealt blows, appellant Hanuman has caught hold of deceased. When Ashabai went to intervene, appellant nos. 2 and 3 i.e. Meenabai and Sojarbai had scuffled with her and thereby had prevented her from attempting to save her husband. Therefore, it is joint effort”, the court observed adding that the gathering of the accused was with common object which they achieved.

Thus, the court upheld the judgment of conviction passed by the trial court and dismissed the appeals filed by the appellants.

Case no. – Criminal Appeal No. 372 of 2016

Case Title – Hanuman S/o Dattarao Karkar and Ors. v. State of Maharashtra