Supreme Court Reinstates Conviction Under Section 302/149 IPC in Unlawful Assembly Case: Surendra Singh vs. State of Rajasthan (2023)

Date of the Judgment: April 11, 2023

Citation: Criminal Appeal No. of 2023 (@ SLP (Crl.) No.4241 of 2019)

Judges: M. R. Shah, J. and C.T. Ravikumar, J.

Can a person be convicted of murder when they are part of an unlawful assembly, even if they didn’t deliver the fatal blow? The Supreme Court of India recently addressed this question, examining the scope of Section 149 of the Indian Penal Code (IPC) concerning unlawful assembly and vicarious liability. This case revolves around an incident where a person died after being attacked by multiple individuals, and the court had to determine the extent of liability for those who did not directly cause the death.

The Supreme Court, in this judgment, overturned a High Court decision and reinstated the trial court’s conviction, holding that all members of an unlawful assembly can be held liable for an offense committed by any member in furtherance of the assembly’s common objective. The judgment was authored by Justice M.R. Shah, with Justice C.T. Ravikumar concurring.

Case Background

On November 28, 2010, an incident occurred where Narendra Singh was filling water from a hand pump when he was attacked by Bhupendra Singh, Vijendra Singh, Bhawani Singh, Sangeeta, and Gulab Kanwar. The attackers used lathis, causing injuries to Narendra Singh and Bhawani Singh, who both became unconscious. Bhawani Singh later died from his injuries.

An FIR was lodged on December 1, 2010, by the complainant, Surendra Singh, the brother of the injured Narendra Singh. The FIR named all five individuals as the assailants. Initially, the police filed a charge sheet only against Bhupendra Singh and Vijendra Singh. However, the trial court later added the remaining three accused based on an application under Section 319 of the Code of Criminal Procedure (Cr.P.C.).

During the trial, Bhupendra Singh passed away, leading to the abatement of proceedings against him. The trial against Vijendra Singh was separated after the other three accused absconded. The trial court convicted Vijendra Singh under Sections 147, 323, and 302/149 of the IPC, sentencing him to life imprisonment for the offense under Section 302 read with Section 149 IPC.

Timeline

Course of Proceedings

The trial court convicted Vijendra Singh for offenses under Sections 147, 323, and 302/149 of the IPC. The High Court, however, partly allowed Vijendra Singh’s appeal. It set aside the conviction under Section 302/149 IPC, reasoning that Section 149 IPC was not applicable since the initial charge sheet was only against two persons. The High Court instead convicted him under Section 323 IPC, considering the individual act of the accused.

The High Court noted that the fatal blow was inflicted by Bhupendra Singh, who had died during the trial, and that the weapon used was a lathi. This led the High Court to conclude that Vijendra Singh could only be held liable for the offense under Section 323 IPC.

Legal Framework

The primary legal provisions at the heart of this case are:

• Section 149 of the Indian Penal Code (IPC): This section deals with offenses committed by members of an unlawful assembly. It states, “If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” This section essentially establishes vicarious liability for the members of an unlawful assembly.
• Section 302 of the Indian Penal Code (IPC): This section defines the punishment for murder, stating, “Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.”
• Section 323 of the Indian Penal Code (IPC): This section defines the punishment for voluntarily causing hurt, stating, “Whoever, except in the case provided by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”
• Section 147 of the Indian Penal Code (IPC): This section defines the punishment for rioting, stating, “Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

Arguments

Appellant’s Arguments (Surendra Singh, original complainant):

• The High Court erred in not applying Section 149 IPC. The FIR named five accused, and even though the charge sheet initially included only two, all five were eventually tried, albeit separately. Therefore, they formed an unlawful assembly.
• The High Court failed to recognize that the five accused were part of an unlawful assembly with a common object, and the offense was committed in furtherance of that object.
• The appellant relied on the case of Bharwad Mepa Dana & Anr. Vs. State of Bombay 1960 (2) SCR 172, which held that even if some members of an unlawful assembly are acquitted or not identified, the remaining members can still be convicted under Section 149 IPC if the assembly consisted of five or more individuals.
• The appellant also relied on Mizaji and Anr. Vs. The State of U.P. (1959) Supp. (1) SCR 940, which clarified that the offense committed in furtherance of the common object need not be pre-planned, and it is sufficient if the members shared a common objective.

Respondent’s Arguments (Vijendra Singh, accused):

• The High Court correctly held that Section 149 IPC does not apply because the initial charge sheet was only against two individuals.
• The respondent relied on Roy Fernandes vs. State of Goa and others, (2012) 3 SCC 221, arguing that mere presence at the scene of the crime is not sufficient for conviction under Section 149 IPC. It must be proven that the accused knew that a murder was likely to be committed.
• Even if the accused was present and participated, unless it is proved that he knew that any of the members of the unlawful assembly would commit murder, Section 149 IPC is not attracted.
• The respondent argued that there was a delay of 3 ½ days in lodging the FIR, the injury on the neck was not established, and there were material contradictions in the testimonies regarding injuries caused by the accused.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court framed the following issue for consideration:

1. Whether the High Court was correct in setting aside the conviction of the accused under Section 302 read with Section 149 of the IPC?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

The Supreme Court also considered the following legal provisions:

• Section 149 of the Indian Penal Code (IPC): Explained as the provision for vicarious liability in unlawful assemblies.
• Section 302 of the Indian Penal Code (IPC): Explained as the provision for punishment of murder.
• Section 323 of the Indian Penal Code (IPC): Explained as the provision for punishment of voluntarily causing hurt.
• Section 147 of the Indian Penal Code (IPC): Explained as the provision for punishment of rioting.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court followed the principles laid down in Bharwad Mepa Dana & Anr. Vs. State of Bombay 1960 (2) SCR 172*, stating that even if some members of an unlawful assembly are acquitted or not identified, the remaining members can still be convicted under Section 149 IPC if the assembly consisted of five or more individuals.
• The Supreme Court followed Mizaji and Anr. Vs. The State of U.P. (1959) Supp. (1) SCR 940*, which clarified that the offense committed in furtherance of the common object need not be pre-planned, and it is sufficient if the members shared a common objective.
• The Supreme Court distinguished the case of Roy Fernandes vs. State of Goa and others, (2012) 3 SCC 221*, stating that the case dealt with the second part of Section 149 IPC, whereas the present case falls under the first part of Section 149 IPC.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following:

• The fact that five individuals were named in the FIR as the assailants.
• The legal principle that all members of an unlawful assembly are liable for offenses committed in furtherance of the common objective, as outlined in Section 149 IPC.
• The principle that the offense committed need not be pre-planned, and it is sufficient if the members shared a common objective.
• The explanation given by the complainant regarding the delay in lodging the FIR was found to be satisfactory.
• The medical evidence and the testimonies of the witnesses were found to be consistent.

Sentiment Analysis of Reasons Given by the Supreme Court:

Fact:Law Ratio Analysis:

Logical Reasoning:

The Supreme Court rejected the High Court’s interpretation that Section 149 IPC was inapplicable due to the initial charge sheet naming only two accused. The Court emphasized that the critical factor was the presence of five individuals as part of the unlawful assembly, regardless of whether they were charged initially or subsequently. The Court also distinguished the case of Roy Fernandes vs. State of Goa and others, (2012) 3 SCC 221, stating that it dealt with the second part of Section 149 IPC, whereas the present case falls under the first part of Section 149 IPC.

The Supreme Court concluded that the accused was part of an unlawful assembly, and the offense was committed in furtherance of the common object of the assembly. Therefore, the accused was liable for the offense under Section 302/149 IPC.

The Court quoted the following from the judgment:

• “In that view of the matter when five persons were specifically named in the FIR and five persons are facing the trial may be separately, Section 149 IPC would be attracted.”
• “As per first part of Section 149 IPC if an offence is committed by any member of unlawful assembly in prosecution of the common object of that assembly, every person who, at the time of that offence, is a member of the same assembly, is guilty of that offence.”
• “The essential question in a case under Section 147 is whether there was an unlawful assembly as defined under 141, I. P. C., of five or more than five persons.”

There was no minority opinion in this case. The judgment was delivered by a bench of two judges, with both judges concurring with the decision.

Key Takeaways

• Members of an unlawful assembly can be held liable for offenses committed by any member in furtherance of the common object, even if they did not directly commit the act.
• The initial charge sheet is not the sole determinant of whether Section 149 IPC applies. The number of individuals involved in the unlawful assembly is the key factor.
• The common object of an unlawful assembly need not be pre-planned; it is sufficient if the members shared a common objective.
• This judgment reinforces the principle of vicarious liability in cases of unlawful assembly.

Directions

The Supreme Court directed the respondent no.2 – accused to surrender before the concerned authority/court to undergo the remaining sentence of life imprisonment within a period of three weeks from the date of the judgment, failing which, he shall be taken into custody forthwith.

Development of Law

The ratio decidendi of this case is that when five or more persons are part of an unlawful assembly, and an offense is committed by any member in furtherance of the common object of that assembly, every member is guilty of that offense under Section 149 of the IPC. This judgment reinforces the existing legal position on the application of Section 149 IPC, particularly in situations where the initial charge sheet does not include all members of the unlawful assembly.

This judgment clarifies that the High Court had erred in setting aside the conviction under Section 302 read with Section 149 of the IPC. The Supreme Court has restored the trial court’s conviction, emphasizing that even if the fatal blow was inflicted by another member of the unlawful assembly, all members are equally liable under the law. The Supreme Court clarified the distinction between the first part and the second part of Section 149 IPC, as discussed in the case of Mizaji and Anr. Vs. The State of U.P. (1959) Supp. (1) SCR 940.

Conclusion

The Supreme Court’s judgment in Surendra Singh vs. State of Rajasthan reinstates the conviction of the accused under Section 302/149 IPC, emphasizing the principle of vicarious liability in cases of unlawful assembly. The Court clarified that all members of an unlawful assembly are liable for offenses committed in furtherance of the common objective, even if they did not directly commit the act. This decision reinforces the importance of Section 149 IPC in ensuring justice in cases involving multiple offenders.