A conviction under Section 149 of the Indian Penal Code requires an unlawful assembly of at least five persons. When the total number of participants is reduced to fewer than five and no evidence establishes the presence of unidentified members, the charge of vicarious liability is legally unsustainable.

JUDGMENT :

SAMIT GOPAL, J.

1. This appeal was initially preferred by Ram Palat/appellant no. 1 and Bigranchhu/appellant no. 2 against the judgment and order dated 3.5.1989 passed by Vth Additional Sessions Judge, Basti in Session Trial No. 418 of 1986, State of U.P. vs. Ram Palat and others , by which the accused/appellants have been convicted and sentenced for the offences under Sections 323/149 I.P.C. to six months rigorous imprisonment and a fine of Rs.500.00 each and in default of payment of fine, they have been directed to undergo further one month imprisonment.

2. During pendency of this appeal the appellant no. 1/Ram Palat died and thus vide order dated 13.09.2022 passed by a co-ordinate Bench of this Court his appeal stood abated. The same thus survived only for the appellant no. 2/Bigranchhu.

3. The case in the present matter was committed to the Court of Sessions for accused Ram Palat,cv Paras Nath, Raja Ram, Suresh, Bigranchoo, Mata Badal and Bigrail @ Janardan under Sections 147, 307/149 and 379 I.P.C. During pendency of trial, accused Raja Ram died and thus his trial stood abated (stated in para-2 of the impugned judgement and order).

4. Ram Palat, Paras Nath, Suresh, Bigranchoo, Mata Badal and Bigrail @ Janardan were tried wherein Paras Nath, Suresh, Mata Badal, Bigrail @ Janardan were acquitted of the charges levelled against them for offences under Sections 147, 307/149, 379 I.P.C. The accused Ram Palat and Bigranchoo were also charged for offences under Sections 147, 307/149, 379 I.P.C. and were acquitted of the said charges but were convicted for the offence under Sections 323/149 I.P.C. and sentenced therein as stated above.

5. An application dated 13.3.1987 was given by Ramdas Upadhyay to S.H.O. Police Station Kotwali, District Basti of which Kapil Muni Pandey was the scribe, alleging therein that his son Raghuvansh Upadhyay was Manager of Dayanand Vidyalay Malviya Road, Basti. He had a plot of land in Gidhi (Jigna), near petrol pump and besides his land, the land of Ram Palat was situated. With regards to dispute between him and Ram Palat regarding boundary of the land, his son Raghuvansh Upadhyay on 13.3.1986 at about 07.00 a.m. went to the land wherein on seeing the informant and his son, the accused armed with lathi and danda reached there and with an intention to murder his son on the exhortation of Ram Palat that “how could he dare to purchase the land besides his land and he may be murdered”, all the accused armed with lathi and danda assaulted him. The informant tried to save his son. The accused also assaulted the informant. On shouts by the informant and his son, Ramchandar, Virendra Bahadur Pandey, Hasnain and many other people reached there and saw the incident. Raghuvansh Upadhyay his son received serious injuries on his head, hands and legs and he also received injury. The accused have snatched and taken away a Reiko wrist watch, one gold ring of 8 ana, one silver ring with stone of 6 ana, Rs.735.00 kept in the pocket, one rexine bag containing papers of the land and papers of motorcycle, driving license, from the place one sofaset of bamboo, one big dari, two buckets have been taken away by them. His report be lodged and action be taken. The said application is marked as Ext. Ka-1 to the records.

6. On the basis of the said application a First Information Report was lodged on 13.03.1986 at about 8.30 a.m. as Case Crime No. 115 of 1986, under S