The invocation of Section 149 IPC for conviction is improper if fewer than five identified individuals are charged, as essential conditions for unlawful assembly are not met.

ORDER :

(ILESH J. VORA, J.)

1. Rule. Learned APP waives service of Rule on behalf of respondent-State. By consent, Rule is fixed forthwith.

2. We have heard Mr. Virat Popat, learned counsel for the applicants and Mr. L B Dabhi, learned APP for the respondent-State.

3. By way of this application under Section 430(1) of Bharatiya Nagarik Suraksha Sanhita, 2023, applicants seek suspension of sentence awarded to them by the Sessions Court concerned for the offence punishable under Sections 307, 143, 323, 324, 325, 447, 147 and 148 r/w Section 149 of the IPC.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 30.12.2024 and order of sentence passed in Sessions Case No.98 of 2014, whereby, the applicants herein were convicted and sentenced as under:

(i) Section 307 r/w. Section 149 of IPC: R.I. for life and fine of Rs.2,50,000/- and in default thereof, further imprisonment for 1 year;

(ii) Section 143 r/w. Section 149 of IPC: R.I. for 6 months;

(iii) Section 323 r/w. Section 149 of IPC: R.I. for 1 year;

(iv) Section 324 r/w. Section 149 of IPC: R.I. for 3 years;

(v) Section 325 r/w. Section 149 of IPC: R.I. for 7 years;

(vi) Section 447 r/w. Section 149 of IPC: R.I. for 3 months;

(vii) Section 147 r/w. Section 149 of IPC: R.I. for 2 years;

(viii) Section 148 r/w. Section 149 of IPC: R.I. for 3 years;

5. Facts and circumstances giving rise to file present application are that, before the Sessions Court, Rajkot, 6 persons were tried for the offences as referred above. According to case of the prosecution, on 25.04.2013, the accused formed an unlawful assembly and came at the place of occurrence armed with dead weapons like sword, wooden logs and pipes and assaulted the complainant. Pursuant to the FIR registered with Gandhigram Police Station, the accused were arrested and at the end of investigation, the chargesheet came to be filed before the Judicial Magistrate who committed the case to the court of Sessions at Rajkot. The applicants-accused were arraigned as accused no.4 and 5 and according to prosecution case, they were armed with wooden logs and assaulted the complainant causing injury over his leg. In order to prove the charge against the accused, the prosecution examined 13 witnesses and exhibited 47 documents. At the end of trial, the court below acquitted accused no.1,2, 3 and 6 of all charges, whereas the applicants-original accused no.4 and 5 have been convicted with the aid of Section 149 and sentenced to undergo life imprisonment for the offence of Section 307 of the IPC and directed to pay Rs.2,50,000/- to be paid by each accused.

6. Mr. Virat Popat, learned counsel for the applicants has submitted that, the judgment of conviction and order of sentence is contrary to the provisions of law, basic principles of criminal jurisprudence and against the evidence on record. That, the court below wrongly invoked Section 149 of the IPC as the essential ingredients of an offence referred to in Section 149 are at all not attracted. It is in this background, it is submitted that, 6 accused were chargesheeted and in the chargesheet, it was not case of the prosecution that, there are other unnamed or unidentified persons other than 6 accused who are chargesheeted. Thus, the conviction of the applicants under Section 307 with the aid of Section 149 could not have been passed. The other contention relates to the individual role attributed to the present applicants herein and according to the submissions, prima-facie, at the most, offence under Section 323 of the IPC can be made out and last submission relates to imposition of fine as in a mechanical manner, without ascertaining economic condition of the accused, the fine has been awarded. Mr. Popat, learned counsel in view of aforementioned submissions, prays that, there are fair chances in succeeding in the appeal and considering the old backlog of the appeals, the present appeal may not likely to be heard in near future and therefore, the prayer of su