The requirement of a common object in an unlawful assembly under Section 149 IPC must be established; mere assembly without a shared illegal purpose does not suffice for vicarious liability.

Reserved on: 12.11.2024 Pronounced On: 21.11.2024 Per Gautam Kumar Choudhary, J . Originally the appeal was preferred by altogether six appellants, four of them died during pendency of appeal and their appeals consequently abated. Two of the appellants are now before this Court in appeal against the judgment of conviction and sentence passed under Section 302/149 of the IPC 2. Informant is the son of the deceased- Most. Markhi. As per the fardbeyan recorded on 05.04.1992, when his mother was going to the shop, both these appellants along with Deepan Yadav, Jeevan Yadav, Basudeo Yadav, Rupan Yadav, Birbal Yadav, Katru Yadav and Ramjee Yadav intercepted her, who were armed with Farsa, Lathi, Garasa and Gupti. It is alleged that Katru Yadav caught hold of her and assaulted by fists and slaps. She was then assaulted by the other accused persons.

Specific overt act has been attributed to Deepan Yadav and Akbar Yadav, who assaulted her with Lathi and Farsa due to which she fell down. When the informant went to her rescue, he was assaulted by Jeevan Yadav with Lathi on his head. The mother of the deceased died of the injuries sustained by her in the assault.

3. On the basis of the fardbeyan, FIR being Balbedda P.S. Case No.50/92 was registered under Sections 147, 148, 149, 323, 307 and 302 of the IPC and Section 27 of the Arms Act against altogether 12 accused persons including these two appellants. Police on investigation, found the case true and submitted charge sheet and altogether seven accused persons were jointly put on trial including these appellants under Section 302/149 of the IPC. One of the accused, Sandhya Devi was given benefit of doubt and rest six accused persons were convicted and sentence under Section 302/149 of the IPC.

4. It is argued by the learned Amicus Curiae on behalf of appellants that Section 149 of the IPC will not apply in the facts and circumstance of the present case. To hold a person constructively liable with the aid of Section 149 of the IPC, it is essential for the prosecution to establish that the act was committed in the prosecution of the common object of the unlawful assembly. Everything happened all of a sudden and there is no evidence that an unlawful assembly was formed with any common object to commit the murder of the deceased. Entire family have been roped into the case to wreak vengeance. Oral evidence is not corroborated by medical evidence as all the injuries were bruises except those resulting in fracture of ribs.

5. Learned A.P.P. has defended the judgment of conviction and sentence.

6. Altogether 14 witnesses have been examined on behalf of the prosecution and relevant documents including inquest report, fardbeyan, post-mortem examination report have been adduced into evidence and marked as exhibits.

7. In order to apply Section 149 of the IPC, the first fundamental ingredient is that the assemblage of persons should come within the meaning of unlawful assembly under Section 141 of the IPC. Law does not declare the mere assembly of more than five, however large, to be unlawful, unless the assembly is inspired by an illegal object as specified under this Section. Active participation in the act of violence is not necessary, but the members should share the common object and be member of the said assembly at the relevant time of incidence. The object should be common to all the members constituting the assembly and they should be aware and concur with it. In the case of sudden and free fight, each of persons involved therein can be held responsible for their individual act and not vicariously liable for the acts of others. Section 149 is divided in two parts. First is that an offence committed by a member of an unlawful assembly in prosecution of the common object of the assembly; and Second an offence that the member of the assembly knew likely to be committed in the prosecution of the common object.

It has been held in Haramant Laxmappa Kukkadi v. State of Karnataka , (1994) 1 SCC