The applicability of Section 149 of the IPC in the present case.

ORDER

1. Heard Mr. Nitin Amin, learned advocate for the applicants and Ms. Krina Calla, leaned APP for the respondent – State.

2. Mr. Nitin Amin, learned advocate for the applicants for three of the revisionists submitted that challenge is given to the concurrent findings of conviction where they have been sentenced for the offence punishable under Sections 324, 326, 147 read with 149 of the IPC and Section 135 of the Bombay Police Act. Advocate Mr. Amin submitted that the ingredients of Section 149 of the IPC could not get attracted in the present matter as according to the FIR, there were only 4 persons who were alleged to have committed the actual offence which is in the form of assault. While the charge-sheet has been registered against five of them. Advocate Mr. Amin further stated that during the course of trial and pendency of the appeal, original accused nos.1 and 2 died and hence, the present application is filed by rest of three accused.

3. Advocate Mr. Amin further stated that while the definition incorporated under Section 141 of IPC for unlawful assembly contemplates five or more persons to be designated as unlawful assembly to have committed the offence in furtherance of the common object of that assembly. While in the present matter, Advocate Mr. Amin stated that the nephew – Padamshri who is accused no.3 and present applicant no.3 has been brought into picture and ascribed the role of having instigated rest of the four persons. Advocate Mr. Amin stated that the offence as alleged have been committed prior to the alleged instigation of accused no.3–Padamshri and thus, submitted that Section 149 of the IPC would not be prima facie attracted in the matter.

4. Further, Advocate Mr. Amin stated that the weapon which has been used is stated to be Dharia being a sharp cutting weapon and the injury ought to have been incise wound while as per the description of the injuries, the injuries are CLW and hence, no intention could be gathered of committng any grievous hurt and if at all the case is taken in totality, the case would not fall under Section 326 of IPC as though there is use of Dharia, there are no connecting or stabbing injuries and thus, stated that the observation of both the Courts requires reconsideration on legal issue and the correctness and the propriety of the findings are to be taken into consideration on merits and facts and evidence of the case. It is further submitted that all the three accused have surrendered today before the Court and in the custody of Sub-Jail, Kadi.

5. While countering the arguments, Ms. Krina Calla, leaned APP submitted that two of the deceased and present three applicants have formed an unlawful assembly and have committed the offence with sharp cutting weapon known as Dharia and stated that since five of them were involved, both the Courts have very specifically dealt with the evidence and has convicted them even under Section 326 read with Section 149 of IPC which is just and proper and thus, submitted that the revision so moved requires no consideration and should be dismissed outright.

6. In view of the submissions made by the learned advocates appearing for the respective parties, the FIR notes that in the offence, weapon Dharia was used and deceased Kantibhai had given blow with Dharia on head and thereafter, Premilaben and Kanubhai had jointly assaulted the complainant on hands and legs. After commission of this offence, it is noted in the FIR that the accused no.3

thereafter had come there and allegedly instigated four of them but hearing hue and cry, all the other witnesses came at the spot and had intervened to protect the complainant from further injury.

7. In view of this fact, the matter would require consideration on merits to observe whether Section 149 of IPC would get attracted in the facts of the case or not.

8. In view of the submissions made, RULE.

9. Hence, the order of sentence dated 7.1.2021 passed by the learned Additional Chief Judicial Magistrate, Kadi in Crim