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2022 Supreme(SC) 1302
SUPREME COURT OF INDIA
Ajay Rastogi, Abhay S. Oka, JJ.
Mahendra & Anr. – Appellants
Versus
The State of M.P. – Respondent
Criminal Appeal No(s). 30 of 2022 (Arising Out of SLP(Crl.) No. 6530 of 2018)
Decided On : 05-01-2022
Ms. Deeksha Mishra, Advocate, Mr. Somesh Chandra Jha, Advocate, For the Appellant / Mr. Veer Vikrant Singh, Dy. AG, Mr. Nirmal Kumar Ambastha, Advocate, Mr. Pashupati Nath Razdan, Advocate, Mr. Prakhar Srivastav Advocate, Ms. Sneh Bairwa Advocate, For the Respondent.
An unlawful assembly must consist of five or more persons, and Section 149 IPC prescribes vicarious criminal liability for all members of such an assembly. However, if all accused persons face trial and the prosecution does not claim the presence of other unnamed or unidentified persons, Section 149 IPC cannot be invoked.
Headnote:Unlawful Assembly - Conviction under Section 325 read with Section 149 of the IPC - Sections 148, 294, 341/149, 325/149 (2 counts), 323/149 (4 counts), 324/149 and 427/149 of IPC - The court examined the essential ingredients of Section 149, which prescribes vicarious criminal liability for all members of an unlawful assembly. It clarified that an unlawful assembly must consist of five or more persons, as stated in Section 141. In this case, all 20 accused persons faced trial, and the prosecution did not claim the presence of other unnamed or unidentified persons. Therefore, the court held that Section 149 IPC could not be invoked, and the conviction of the appellants under Section 325 with the aid of Section 149 IPC was unsustainable. The appeal was allowed, and the conviction was quashed.
Fact of the Case:
The appellants were convicted for an offence under Section 325 read with Section 149 of the IPC. The charge-sheet was filed against 20 persons, and after trial, three were convicted while 17 were acquitted. The appellants challenged their conviction, arguing that the essential condition of an unlawful assembly, consisting of five or more persons, was not met.Finding of the Court:
The court held that the conviction of the appellants under Section 325 with the aid of Section 149 IPC was unsustainable. It noted that all 20 accused persons faced trial, and the prosecution did not claim the presence of other unnamed or unidentified persons. Therefore, Section 149 IPC could not be invoked.Issues:
Whether the conviction of the appellants under Section 325 with the aid of Section 149 IPC was sustainable.Ratio Decidendi:
An unlawful assembly must consist of five or more persons, as stated in Section 141 IPC. If the prosecution claims the presence of other unnamed or unidentified persons, less than five persons may be charged under Section 149. However, in this case, all 20 accused persons faced trial, and the prosecution did not claim the presence of other persons. Therefore, Section 149 IPC could not be invoked.Final Decision:
The appeal was allowed, and the conviction of the appellants under Sections 148, 325/149, and 323/149 IPC was quashed.ORDER
1. Leave granted.
2. The present appeal is directed against the judgment dated 25.06.2018 passed by the High Court of Madhya Pradesh, Bench at Gwalior in Crl. Revision No. 156 of 2009 upholding conviction of the appellants for offence under Section 325 read with Section 149 of the IPC and sentence of one year RI and a fine of Rs. 500/- and in default with imprisonment for one month.
3. The facts in brief which emanate from the record are that the complainant had lodged a report against the appellants and 18 others on that basis FIR was registered on 27.11.2004 at about 13.00 hours and a charge-sheet was submitted against the appellants and 18 other accused persons under Sections 148, 294, 341/149, 325/149 (2 counts), 323/149 (4 counts),324/149 and 427/149 of IPC. In the report it was stated by the complainant that on 27.11.2004 at about 10.00 a.m. he and his sons had gone to a village in order to lift the engine of a tractor and when they were coming back after lifting the engine in their tractor trolley, on the way 15-20 persons who were armed with lathi and axe came there with a common object of eliminating them and started beating his son Bachna with lathi and axe by abusing him with filthy language. They were Mahendra Singh, Roop Singh, Khilan Singh son of Halkai, Bhujbal and 10 to 12 other persons, whose names are not known to him. The Trial Court charge-sheeted 20 persons under Sections 148, 294, 341/149, 325/149 (2 counts), 323/149 (4 counts), 324/149 and 427/149 of IPC, which was denied by the accused persons.
4. The Trial Court by its judgment dated 12.11.2008, on the basis of the evidence recorded, convicted the appellants under Sections 148, 325/149 and 323/149 IPC.
5. It may be relevant to note that the charge-sheet was filed implicating 20 accused persons who faced trial and the learned Trial Court acquitted 17 out of 20 accused persons who faced trial and three accused persons were finally convicted under Sections 148, 325/149 and 323/149 IPC. It may be relevant to note that one of the accused persons who were convicted, namely, Sardar Singh, expired during pendency of criminal revision before the High Court and qua him the revision was dismissed as having abated by order dated 20.04.2011.
6. The judgment dated 12.11.2008 came to be confirmed on appeal being preferred by the present appellants before the learned 3rd Additional Sessions Judge, Vidisha by judgment dated 24.02.2009 and the criminal revision petition preferred at the instance of the appellants came to be dismissed under the impugned judgment dated 25.06.2018.
7. Learned counsel for the appellants submits 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 learned Trial Court by judgment and order dated 12.11.2008 and 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 and 3 out of 20 accused persons were convicted for offence under Sections 148, 325/149 and 323/149 IPC and it is 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.
8. Counsel for the appellants submits that ingredients of Section 149 of an unlawful assembly that this membership must be five or more and in the instant case out of 20 accused persons who faced trial, three have been convicted by the learned Trial Court under the judgment dated 12.11.2008 under Sections 148, 325/149 and 323/149 IPC and the essential condition of unlawful assembly is that it must be of five or more persons, as contemplated under Section 141 IPC. Taking assistance thereof, counsel submits that the conviction under the impugned judgment of the appellants under Sections 325 with the aid of Section 149 IPC is unsustainable in law.
9. Counsel for the respondent, while supporting the judgment impugned submits that
