Culpability Of A Member Of An Unlawful Assembly Is Vicarious In Nature : Gauhati HC [Read Judgment]

Justice Manash Ranjan Pathak and Justice Sanjay Kumar Medhi in this behalf said,

"…the distinction beyond common intention appearing in Section 34 and common object appearing in Section 149 of the IPC has stated that while in the former, a pre concert and meeting of minds is necessary, there is no such necessity for invoking Section 149 of the IPC. The only requirement is that unlawful assembly as defined in Section 141 of the IPC should be there and there has to be a common object of committing the offence. The implication/ culpability of a member of an unlawful assembly is vicarious in nature and it is not necessary that each of the member of the unlawful assembly should commit an overt act. In other words, an offence committed by any member of unlawful assembly will vicariously rope in the other members of the said assembly making him or her liable."

Dismissing the Appellant's contention that for a conviction to be made under Section 149 of the IPC there is a requirement of common object, the court said,

"As regards the submission that Section 149 of the IPC will have no application, this Court is the opinion that the pre-conditions for invoking Section 149 of the IPC are fully met as all the accused persons who had come to attack the house are of one family and had a common object of teaching a lesson to the family of the P.W. 1."

The four Appellants had been convicted by Additional Sessions Judge, Cachar, under Sections 148, 323, 324, 302 read with Section 149 of IPC for trespassing the Complainant's house and subsequently injuring and killing his family members by stone pelting and attacking them by spear.

The Appellants had contended that the allegations were misconceived and a result of previous animosity between the parties regarding a land dispute. They further relied on various rulings, including Nagesar v. State of Chattisgarh, (2014) 6 SCC 672, whereby it was held that mere presence or association with other member alone is not per se sufficient to hold every one of them criminally liable in the offences committed by others unless it could be shown that each one also intended or knew the likelihood of the commission of the offence.

In this regard the court said,

"This Court is unable to accept the proposition advanced on behalf of the appellants that unless an overt act is attributed to each of the members of the unlawful assembly, they cannot be held to be guilty. Such proposition would not be a correct proposition and would rather defeat the legislative intention of incorporating Section 149 of the IPC."

Lastly refuting the contention that the statements made by prosecution witnesses were improved, the court observed,

"It is seen that the present is a case where there are at least 4 (four) eye witnesses who had not only seen the murderous assault upon the deceased but were also injured in the assault. The description of the injuries made by the witnesses and the weapons used appeared to be consistent with the medical evidence.

We also find force in the submissions made on behalf of the State that testimony of persons in a criminal case where such person is himself injured in the assault bears more weight and are not lightly to be over-looked."

The Appellants were represented by Advocates B. M. Choudhury, B. K. Mahajan with Mr. R. Ali and the State by Addl. Public Prosecutor T. K. Mishra.

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