[Unlawful Assembly] Section 149 IPC Will Be Attracted If Five Or More Persons Specifically Named In FIR Are Facing Trial Separately : Supreme Court

The Supreme Court recently observed that the Section 149 (Unlawful assembly) of the Indian Penal Code will be attracted even if the specifically named five or more persons are facing trial separately.

“In that view of the matter when five persons were specifically named in the FIR and five persons are facing the trial may be separately, Section 149 IPC would be attracted”, a Bench of Justices MR Shah and CT Ravikumar observed.

The Bench was hearing an appeal against a Rajasthan High Court judgement which partly allowed a plea by Vijendra Singh (Respondent accused). The High Court had set aside the conviction for Section 302/149 IPC but convicted him under Section 323 of the Indian Penal Code. The original complainant then moved the Top Court.

The FIR registered stated that the complainant’s younger brother Narendra Singh was attacked by 5 persons including the Respondents; lathi blows were pointed to Narendra Singh. Due to this, Narendra Singh and Bhawani Singh became unconscious. After one person died, an FIR was registered. Though the five persons were named in the FIR, the police filed charge-sheet only against two persons, Bhupendra Singh and Vijendra Singh.

On conclusion of the trial, the Trial Court convicted the accused Vijendra Singh for the offence under several sections of the IPC and sentenced him to undergo life imprisonment for the offence punishable under Sections 302 read with Section 149 IPC. The High Court had set aside the conviction of the accused Vijendra Singh for offence under Section 302 read with Section 149 IPC by observing that no case is made out for conviction with the aid of Section 149 IPC.

At the outset, the Court noted that the trial Court convicted the respondent – accused for the offence under Section 302 IPC with the aid of Section 149 IPC. However, the High Court had observed and held that as the initial charge-sheet was filed only against two persons /accused and because the three persons were subsequently arrayed as the accused and were being tried separately, Section 149 IPC won’t be attracted. The High Court has also observed that even as per the FIR three accused came at the place of occurrence when they saw Narendra Singh was filling water and it was thus, not an assembly of five accused.

“However, the High Court has not properly and considered the fact that in the report/FIR there were specific allegations against five accused persons and five accused persons were named in the FIR”, the Top Court observed.

Relying on the judgement in Bharwad Mepa Dana & Anr. Vs. State of Bombay 1960 (2) SCR 172, the Court observed that merely because two other persons forming part of the unlawful assembly were not convicted as their identity was not established, the accused can’t say that they are not forming part of the unlawful assembly under Section 149 IPC.

Reiterating the principle, the Court said once the accused was found to be part of an unlawful assembly, he would be liable for murder even if the fatal blow was not given by him but someone else who was part of such unlawful assembly.

“Now once the respondent – accused was found to be member of the unlawful assembly of more than five persons and he actually participated in commission of the offence may be the fatal blow might have been given by the another accused, in the present case Bhupendra Singh, still with the aid of Section 149 IPC, Respondent Accused can be convicted for the offence under Section 302 IPC with the aid of Section 149 IPC. The case would certainly fall within first part of Section 149 IPC. As per first part of Section 149 IPC if an offence is committed by any member of unlawful assembly in prosecution of the common object of that assembly, every person who, at the time of that offence, is a member of the same assembly, is guilty of that offence.”

The Court also said when the delay in lodging the FIR after 3 ½ days has been sufficiently and properly explained, there’s no reason to give benefit of doubt to the accused.

“Though the injury no.9 was caused by the accused Bhupendra Singh as observed and held hereinabove the respondent accused being a part of the unlawful assembly and who also participated in commission of the offence, he shall also be liable to be convicted for the offence under Section 302 IPC with the aid of Section 149 IPC, even for the act of the accused Bhupendra Singh who gave the vital blow”, the Court said while allowing the appeal.

Case Title: Surendra Singh v. State of Rajasthan and Anr | SLP (Crl.) No.4241 of 2019

Citation : 2023 LiveLaw (SC) 318

Indian Penal Code 1860- Section 149- when five persons were specifically named in the FIR and five persons are facing the trial may be separately, Section 149 IPC would be attracted (Para 10)

Indian Penal Code 1860- Section 149- if an offence is committed by any member of unlawful assembly in prosecution of the common object of that assembly, every person who, at the time of that offence, is a member of the same assembly, is guilty of that offence (Para 10.2)

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