For Conviction Under Section 149 IPC, No Overt Act Needed; Membership Of Unlawful Assembly Enough: Supreme Court

The Supreme Court recently held that for Section 149 of the Indian Penal Code, it is not necessary to demonstrate that a person committed an illegal overt act or was guilty of an illegal omission to be held a member of an unlawful assembly. The punishment prescribed by Section 149 is, in a sense, vicarious, and does not mandate that every member of the unlawful assembly has personally committed the offense.

The Court placing reliance on the Constitution bench judgment in Masalti v. State of U.P 2 [1964] 8 SCR 133 observed that:

“It could thus clearly be seen that the Constitution Bench has held that it is not necessary that every person constituting an unlawful assembly must play an active role in convicting him with the aid of Section 149 of IPC. What has to be established by the prosecution is that a person has to be a member of an unlawful assembly, i.e. he has to be one of the persons constituting the assembly and that he had entertained the common object along with the other members of the assembly, as defined under Section 141 of IPC. As provided under Section 142 of IPC, whoever, being aware of facts that render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.”

A 3 judge bench of the Supreme Court comprising Justice BR Gavai, Justice BV Nagarathna, and Justice Prashant Kumar Mishra was hearing an appeal against a judgment of the Madhya Pradesh High Court which upheld the sentence of the appellants for life imprisonment under sections 302 read with 149 IPC.

In this case, a violent altercation occurred when a dispute involving a buffalo led to a serious confrontation. A group of armed individuals suddenly confronted them as a result of this, the complainant was grievously injured and Madan died.

The FIR was registered against 7 accused persons and the trial court in 2005 held them guilty under Section 302, 326, 324, 323, read with Section 149 and Section 147 and Section 148 of IPC. An appeal was preferred before the HC which dismissed it in 2018. Aggrieved by the same, 2 accused persons Parshuram and Jalim Singh approached the Supreme Court.

In the case at hand, the court noted that while there was no specific role attributed to the appellants regarding the assault on the deceased Madan, the evidence established that they were members of the unlawful assembly. The Court, citing the principles laid down in the Masalti case, clarified that for conviction, it is not essential for such a person to have physically assaulted the deceased.

Next, the court considered the question as to whether the conviction under Section 302 of IPC would be tenable or not.

Non-explanation of injuries on the accused shows prosecution may have concealed the real incident

The Court noted that as per the appellant’s version of events, they had complained to the local police station regarding an attack by the complainant party. They stated that while returning, there was a confrontation with them and Madan died due to the free fight which ensued. On this aspect, the trial court had observed that no fatal weapons were used by the complainant party.

However, the court did not find this observation of the trial court to be correct.

The Court, drawing from the case of Lakshmi Singh v. State of Bihar (1976) 4 SCC 394, highlighted that in murder cases, the non-explanation of injuries sustained by the accused can lead the court to draw several critical inferences:

● The prosecution may have concealed the true genesis and origin of the occurrence.

● Witnesses denying the presence of injuries on the accused may be unreliable

● A defense version explaining the injuries on the accused may cast doubt on the prosecution's case.

It further added that the omission by the prosecution to clarify the injuries of the accused becomes even more significant in cases where the evidence is provided by interested or inimical witnesses.

The Court observed, “Non-explanation of injuries on the persons of the accused would create a doubt, as to, whether, the prosecution has brought on record the real genesis of the incident or not.”

Prosecution failed to establish there was a common object to kill the deceased

Now in this backdrop, the court pondered whether the common objective of the unlawful assembly was to cause the death of the deceased.

The Court considered the context related to the dispute involving the buffalo on the previous day and contemplated the possibility that the accused parties did not necessarily intend to cause the death of anyone from the complainant party. Instead, they might have assembled with the sole intention of reprimanding the complainant party in response to the buffalo's actions.

In these circumstances, the court held that the prosecution had failed to prove that the unlawful assembly had the intention to cause the death of the deceased.

Therefore, the court altered the conviction from Section 302 to Part II of Section 304 of IPC.

Case title: Parshuram v. State of MP

Citation: 2023 LiveLaw (SC)953

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