Whether Section 149 IPC applies ?
“47. … It is well settled that once a membership
of an unlawful assembly is established it is not
incumbent on the prosecution to establish
whether any specific overt act has been assigned
to any accused. In other words, mere membership
of the unlawful assembly is sufficient and every
member of an unlawful assembly is vicariously
liable for the acts done by others either in the
prosecution of the common object of the unlawful
assembly or such which the members of the
unlawful assembly knew were likely to be
committed.”
For the application of the principle of vicarious liability under
Section 149 IPC what is material to establish is that the persons concerned
were members of an unlawful assembly, the common object of which was
to commit a particular crime. The fact that five persons were separately
armed and had entered the house of the deceased during night time is
clearly indicative that each one of them was a member of that unlawful
assembly, the object of which was to commit the crime with which they
came to be charged in question. The High Court was not justified in
granting benefit to those three accused.
The presence of the respondents in the house of the deceased; the
fact that they were armed; the fact that all of them had entered the house
around midnight and further fact that two out of those five accused used
their deadly weapons to cause the death of the deceased was sufficient to
attract the principles of vicarious liability under Section 149 IPC.
The High Court was not justified in entertaining a doubt that it
could not be ruled out that the respondents were merely named along with
the other accused persons. There was absolutely no room for such doubt.
The testimony of the eye witnesses namely the wife and the son, who were
occupants of the same house, was quite clear and cogent.
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The State of Madhya Pradesh vs. Killu @ Kailash & Ors.
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1709-1710 OF 2019
(Arising out of Special Leave Petition (Crl.)Nos.2497-2498 of 2019)
STATE OF MADHYA PRADESH …Appellant
VERSUS
KILLU @ KAILASH AND ORS. …Respondents
J U D G M E N T
Uday Umesh Lalit, J.
1. Leave granted.
2. These Appeals question the judgment and order dated 29.06.2018
passed by the High Court of Madhya Pradesh at Jabalpur in Criminal
Appeal Nos.2676 of 2008 and 158 of 2009.
3. The basic facts as stated in the judgment under appeal are as
under:-
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“3. Prosecution story, in brief is that,
accused/appellant No.4 Khushiram in Cr. Appeal
No.2678 of 2008, who is uncle [mousia] of the son of
the deceased, had some enmity with Balaprasad
Pathak [since deceased]. He along with other accused
persons entered in the house of Balaprasad Pathak in
the mid night [2 O’ clock] of 23.05.2005. Deceased
was sleeping with his family members.
Accused/appellants [in Cr.Appeal No.2678/2008]
namely; Khushiram and Himmu @ Hemchand were
armed with axe, appellant Devendra was armed with
Ballam and other two accused namely Killu @
Kailash and Kailash Nayak were armed with lathi.
Two accused persons namely; Khushiram and Himmu
@ Hemchand [appellants No.2 and 4 in Cr. Appeal
No.2676/2008] inflicted injuries by axe on the person
of deceased. Allegation against other accused persons
is of exhortation. Deceased died on the spot. Report
of the incident was lodged by (PW-5) Rameshwar
Pathak. Police conducted investigation and filed
charge-sheet. During trial, appellants abjured their
guilt and pleaded innocence. …”
4. In support of its case, the prosecution relied upon the testimony of
PW3-Prabha Rani, wife of the deceased, PW4-Devendra Kumar, son of the
deceased and PW5-Rameshwar Pathak, a relative of the deceased, who had
lodged the First Information Report (‘the FIR’, for short). It was narrated
in the FIR that after having received information about the assault, the
informant had gone to the house of the deceased where PW3 narrated the
incident to him, based on which the reporting was made by the informant.
The medical evidence was unfolded through the testimony of PW2-Dr.
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R.K. Bhardwaj, who had conducted the post-mortem. He had found
following injuries on the person of the deceased:-
“(i) Incised wound over left anterior part of scalp
4”x1/2” underlaying bone and brain matter cut
inhacranial cavily pilled with blood.
(ii) Incised wound 5” x 1” x 2 1/2” uppermost part
of chest and adjoining anterior part of neck
slightly left side obliquely placed undergone and
blood vessels cut.”
According to him, the injuries were ante-mortem and the deceased
had died as a result of those injuries.
5. In due course, five accused were tried in connection with the
murder of said Balaprasad Pathak for the offence punishable under Section
302 read with Section 149 IPC in Sessions Trial No.173 of 2005 before the
First Additional Sessions Judge, Damoh, Madhya Pradesh. After
considering the evidence on record, the Trial Court concluded that all the
five accused were members of an unlawful assembly and had entered the
house of the deceased on the fateful night with the common object of
causing death of the deceased and as such, they were guilty of the offence
punishable under Section 302 read with Section 149 IPC. Holding them
guilty of the aforesaid offence, by its judgment dated 19.12.2001, the Trial
Court sentenced them to suffer life imprisonment and to pay fine in the sum
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4
of Rs.500/- each, in default whereof, each of the convicts was to undergo
further rigorous imprisonment of three months. The view so taken by the
Trial Court was challenged by way of Criminal Appeal No.2676 of 2008 by
four accused while Criminal Appeal No.158 of 2009 was filed by accused
Kailash Nayak.
6. Insofar as accused Himmu @ Hemchand and Khushiram, who were
armed with sharp cutting weapons, the High Court found as under:-
“16. Appellants No.2 and 4 namely Himmu @
Hemchand and Khushiram were armed with axe, i.e.
deadly weapons. They inflicted blows on the vital
part of deceased as a result of which, deceased died
on the spot. Evidence of causing injury by axe is
against the appellants Himmu @ Hemchand and
Khushiram. Hence, in our opinion, the Trial Court
has rightly held the appellants guilty for commission
of offence of murder. Other three accused persons
namely; Killy @ Kailash and Devendra (appellants
No. 1 and 3 in Cr. A No. 2676/2008) and appellant
Kailash Nayak (appellant in Cr.A.No. 158/2009) have
been convicted with the aid of Section 149 of IPC.
Allegation against them is that they entered in the
house and they were armed with lathis and Ballam.
From the evidence, this fact has also been proved that
deceased was facing trial of Section 302 of IPC
because he had killed one Rammilan Pathak.”
7. The High Court further found that the other three accused were
stated to be armed with lathis and Ballam but there were no injuries which
could be associated with lathis and Ballam. The High Court, therefore,
gave benefit to said three accused as under:-
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“21.From the aforesaid quoted judgment, the
principle of law is that “the member of unlawful
assembly may have committed for the offence caused
by another accused, if he has knowledge about the act
committed by the main accused”. In the present case,
evidence is that the accused entered the house of
deceased and thereafter, two accused had inflicted
blow by axe. The other accused persons did not give
any blow on the deceased. It is alleged that they were
present on the spot. There was previous enmity
between the accused persons and the deceased, he was
also facing criminal trial. Hence, it cannot be ruled
out that other three persons, who had not inflicted any
injury may have been named along with the other
accused persons.
22. Looking to the evidence on record, in our
opinion, the conviction of three appellants namely;
Killu @ Kailash, Devendra and Kailash Nayak, who
were armed with lathis and Ballam and did not inflict
any blow with the aid of Section 149 of IPC, is not
proper. There is lack of sufficient evidence to prove
them guilty for commission of offence under Section
149 of IPC beyond reasonable doubt. Hence, the
appeal filed by appellant Kailash Nayak (Cr. Appeal
No. 158/2009) is hereby allowed.
23. Cr. Appeal No.2676/2008, filed by four accused/
appellants is partly allowed. Appeal filed by
appellants No. 2 and 4 namely; Himmu @ Hemchand
and Khushiram is hereby dismissed. They are
convicted for commission of offence punishable under
Section 302 of IPC and awarded a sentence of life.
Appellant No.2 Himmu @ Hemchand is on bail. His
bail bonds are hereby cancelled. He is directed to
surrender before the Trial Court for facing remaining
jail sentence.
24. Appeal filed by the appellants No.1 and 3
namely; Killu @ Kailash and Devendra [Cr.Appeal
No.2676/2008] is hereby allowed. They are acquitted
from the charge of Section 302/149 of IPC. The
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judgment passed by the trial Court in regard to
appellants No.1 and 3 namely; Killu @ Kailash and
Devendra, is hereby set aside. Appellants Killu @
Kailash, Devendra and Kailash Nayak, are on bail,
their bail bonds are hereby discharged.”
8. The State, being aggrieved by the order of acquittal of accused
Killu @ Kailash, Devendra and Kailash Nayak, has preferred the instant
appeals. We heard Mr. Varun K. Chopra, Deputy Advocate General
(Madhya Pradesh), in support of the Appeal and Mr. S.K. Shrivastava and
Mr. R.R. Rajesh, learned Advocates who appeared for three acquitted
accused.
9. Since the instant case depends upon the extent and application of
the principle of vicarious liability under Section 149 of the IPC, at the
outset, we may consider the leading case of Masalti vs. State of U.P.1
The
submission of the appellants therein was that mere presence in an assembly
would not make a person member of an unlawful assembly unless it was
shown that he had done something or omitted to do something which
would make him a member of unlawful assembly. Reliance was placed by
said appellants on the earlier judgment of this Court in Baladin vs. State
of Uttar Pradesh2
. The issue was dealt with as under:-
“… … The observation of which Mr. Sawhney relies,
prima facie, does seem to support his contention; but,
1 (1964)8 SCR 133
2 AIR 1956 SC 181
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with respect, we ought to add that the said observation
cannot be read as laying down a general proposition
of law that unless an overt act is proved against a
person who is alleged to be a member of an unlawful
assembly, it cannot be said that he is a member of
such an unlawful assembly. In appreciating the effect
of the relevant observation on which Mr. Sawhney has
built his argument, we must bear in mind the facts
which were found in that case. It appears that in the
case of Baladin2
, the members of the family of the
appellants and other residents of the village had
assembled together; some of them shared the common
object of the unlawful assembly, while others were
merely passive witnesses. Dealing with such an
assembly, this Court observed that the presence of a
person in an assembly of that kind would not
necessarily show that he was a member of an unlawful assembly. What has to be proved against a
person who is alleged to be a member of an unlawful
assembly is that he was one of the persons
constituting the assembly ,and he entertained along
with the other members of the assembly the common
object as defined by s.141, I.P.C. Section 142 provides
that whoever, being aware of facts which render any
assembly an unlawful assembly, intentionally joins
that assembly, or continues in it, is said to be a
member of an unlawful assembly. In other words, an
assembly of five or more persons actuated by, and
entertaining one or more of the common objects
specified by the five clauses of s. 141, is an unlawful
assembly. The crucial question to determine in such a
case is whether the assembly consisted of five or more
persons and whether the said persons entertained one
or more of the common objects as specified by s.141.
While determining this question, it becomes relevant
to consider whether the assembly consisted of some
persons who were merely passive witnesses and had
joined the assembly as a matter of idle curiosity
without intending to entertain the common object of
the assembly. It is in that context that the observations
made by this Court in the case of Baladin2
assume
significance; otherwise, in law, it would not be correct
to say that before a person is held to be a member of
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an unlawful assembly, it must be shown that he had
committed some illegal overt act or had been guilty of
some illegal omission in pursuance of the common
object of the assembly. In fact, s.149 makes it clear
that 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; and that
emphatically brings out the principle that the
punishment prescribed by s.149 is in a sense vicarious
and does not always proceed on the basis that the
offence has been actually committed by every
member of the unlawful assembly. Therefore, we are
satisfied that the observations made in the case of
Baladin2
must be read in the context of the special
facts of that case and cannot be treated as laying down
an unqualified proposition of law such as Mr.
Sawhney suggests.”
(underlined by us)
10. After considering the cases on the point including Masalti1
, the
order of acquittal passed by the High Court was set aside by this Court in
State of Maharashtra vs. Ramlal Devappa Rathod and others3
. Relevant
paragraphs of the decision are:-
“22. We may at this stage consider the law of
vicarious liability as stipulated in Section 149 IPC.
The key expressions in Section 149 IPC are:
(a) if an offence is committed by any member of
an unlawful assembly;
3 (2015) 15 SCC 77
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(b) in prosecution of common object of that
assembly;
(c) which the members of that assembly knew to
be likely to be committed in prosecution of that
object;
(d) every person who is a member of the same
assembly is guilty of the offence.
This section makes both the categories of persons,
those who committed the offence as also those who
were members of the same assembly liable for the
offences under Section 149 IPC, if other requirements
of the section are satisfied. That is to say, if an offence
is committed by any person of an unlawful assembly,
which the members of that assembly knew to be likely
to be committed, every member of that assembly is
guilty of the offence. The law is clear that
membership of unlawful assembly is sufficient to hold
such members vicariously liable.
23. It would be useful to refer to certain decisions of
this Court. In State of U.P. v. Kishanpal4
it was
observed: (SCC p. 93, para 47)
“47. … It is well settled that once a membership
of an unlawful assembly is established it is not
incumbent on the prosecution to establish
whether any specific overt act has been assigned
to any accused. In other words, mere membership
of the unlawful assembly is sufficient and every
member of an unlawful assembly is vicariously
liable for the acts done by others either in the
prosecution of the common object of the unlawful
assembly or such which the members of the
unlawful assembly knew were likely to be
committed.”
Further, in Amerika Rai v. State of Bihar5
it was
observed as under: (SCC p. 682, para 13)
4 (2008) 16 SCC 73
5 (2011) 4 SCC 677
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“13. The law of vicarious liability under Section
149 IPC is crystal clear that even the presence in
the unlawful assembly, but with an active mind,
to achieve the common object makes such a
person vicariously liable for the acts of the
unlawful assembly.”
24. The liability of those members of the unlawful
assembly who actually committed the offence would
depend upon the nature and acceptability of the
evidence on record. The difficulty may however arise,
while considering the liability and extent of
culpability of those who may not have actually
committed the offence but were members of that
assembly. What binds them and makes them
vicariously liable is the common object in prosecution
of which the offence was committed by other
members of the unlawful assembly. Existence of
common object can be ascertained from the attending
facts and circumstances. For example, if more than
five persons storm into the house of the victim where
only few of them are armed while the others are not
and the armed persons open an assault, even unarmed
persons are vicariously liable for the acts committed
by those armed persons. In such a situation it may not
be difficult to ascertain the existence of common
object as all the persons had stormed into the house of
the victim and it could be assessed with certainty that
all were guided by the common object, making every
one of them liable. Thus when the persons forming
the assembly are shown to be having same interest in
pursuance of which some of them come armed, while
others may not be so armed, such unarmed persons if
they share the same common object, are liable for the
acts committed by the armed persons.”
11. If we now consider the facts in the present matter, the case lies in a
short compass. The case of the prosecution that five accused had entered
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the house of the deceased on the fateful night is accepted. It is also found
that each one of them was separately armed and two of them were armed
with sharp cutting weapons. As far as other three accused i.e. the present
respondents were concerned, the first one had a Ballam while the other two
were having lathis. It is true that the deceased had only two injuries on the
person which were the cause of death. To the extent that the persons who
were armed with sharp cutting weapons were found responsible for causing
the death is also not disputed or challenged. The evidence on record fully
establishes that the present respondents had also accompanied those two
accused persons who were found responsible for the crime and all of them
had entered the house of the deceased around midnight. It is crucial to note
that the incident did not happen in any public place where the presence of a
non-participating accused could, at times, be labelled as that of an innocent
bystander. The role played by each one of them was clear and specific.
They had stormed into the house in the dead of the night.
12. On the strength of the principles accepted and laid down in the
cases as aforementioned, their liability is fully established. Merely because
the other three accused persons i.e. the present respondents had not used
their weapons does not absolve them of the responsibility and vicarious
liability on which the very idea of charge under Section 149 IPC is
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founded. For the application of the principle of vicarious liability under
Section 149 IPC what is material to establish is that the persons concerned
were members of an unlawful assembly, the common object of which was
to commit a particular crime. The fact that five persons were separately
armed and had entered the house of the deceased during night time is
clearly indicative that each one of them was a member of that unlawful
assembly, the object of which was to commit the crime with which they
came to be charged in question. The High Court was not justified in
granting benefit to those three accused.
13. The presence of the respondents in the house of the deceased; the
fact that they were armed; the fact that all of them had entered the house
around midnight and further fact that two out of those five accused used
their deadly weapons to cause the death of the deceased was sufficient to
attract the principles of vicarious liability under Section 149 IPC.
14. The High Court was not justified in entertaining a doubt that it
could not be ruled out that the respondents were merely named along with
the other accused persons. There was absolutely no room for such doubt.
The testimony of the eye witnesses namely the wife and the son, who were
occupants of the same house, was quite clear and cogent.
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15. We have, therefore, no hesitation in allowing these Appeals. We,
thus, set aside the view taken by the High Court insofar as the present
respondents namely Killu @ Kailash, Devendra and Kailash Nayak are
concerned. We set aside their acquittal as recorded by the High Court and
restore the judgment and order of conviction passed by the Trial Court in
Sessions Trial No. 173 of 2005 against said respondents.
16. The respondents shall surrender within three weeks, failing which
the concerned police shall immediately arrest them and send them to
custody to undergo the sentence imposed upon them. A copy of this
Judgment shall be sent to the concerned Chief Judicial Magistrate and the
Police Station for immediate compliance.
………………………J.
[Uday Umesh Lalit]
………………………J.
[Indu Malhotra]
New Delhi;
November 19, 2019.
“47. … It is well settled that once a membership
of an unlawful assembly is established it is not
incumbent on the prosecution to establish
whether any specific overt act has been assigned
to any accused. In other words, mere membership
of the unlawful assembly is sufficient and every
member of an unlawful assembly is vicariously
liable for the acts done by others either in the
prosecution of the common object of the unlawful
assembly or such which the members of the
unlawful assembly knew were likely to be
committed.”
For the application of the principle of vicarious liability under
Section 149 IPC what is material to establish is that the persons concerned
were members of an unlawful assembly, the common object of which was
to commit a particular crime. The fact that five persons were separately
armed and had entered the house of the deceased during night time is
clearly indicative that each one of them was a member of that unlawful
assembly, the object of which was to commit the crime with which they
came to be charged in question. The High Court was not justified in
granting benefit to those three accused.
The presence of the respondents in the house of the deceased; the
fact that they were armed; the fact that all of them had entered the house
around midnight and further fact that two out of those five accused used
their deadly weapons to cause the death of the deceased was sufficient to
attract the principles of vicarious liability under Section 149 IPC.
The High Court was not justified in entertaining a doubt that it
could not be ruled out that the respondents were merely named along with
the other accused persons. There was absolutely no room for such doubt.
The testimony of the eye witnesses namely the wife and the son, who were
occupants of the same house, was quite clear and cogent.
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The State of Madhya Pradesh vs. Killu @ Kailash & Ors.
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1709-1710 OF 2019
(Arising out of Special Leave Petition (Crl.)Nos.2497-2498 of 2019)
STATE OF MADHYA PRADESH …Appellant
VERSUS
KILLU @ KAILASH AND ORS. …Respondents
J U D G M E N T
Uday Umesh Lalit, J.
1. Leave granted.
2. These Appeals question the judgment and order dated 29.06.2018
passed by the High Court of Madhya Pradesh at Jabalpur in Criminal
Appeal Nos.2676 of 2008 and 158 of 2009.
3. The basic facts as stated in the judgment under appeal are as
under:-
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“3. Prosecution story, in brief is that,
accused/appellant No.4 Khushiram in Cr. Appeal
No.2678 of 2008, who is uncle [mousia] of the son of
the deceased, had some enmity with Balaprasad
Pathak [since deceased]. He along with other accused
persons entered in the house of Balaprasad Pathak in
the mid night [2 O’ clock] of 23.05.2005. Deceased
was sleeping with his family members.
Accused/appellants [in Cr.Appeal No.2678/2008]
namely; Khushiram and Himmu @ Hemchand were
armed with axe, appellant Devendra was armed with
Ballam and other two accused namely Killu @
Kailash and Kailash Nayak were armed with lathi.
Two accused persons namely; Khushiram and Himmu
@ Hemchand [appellants No.2 and 4 in Cr. Appeal
No.2676/2008] inflicted injuries by axe on the person
of deceased. Allegation against other accused persons
is of exhortation. Deceased died on the spot. Report
of the incident was lodged by (PW-5) Rameshwar
Pathak. Police conducted investigation and filed
charge-sheet. During trial, appellants abjured their
guilt and pleaded innocence. …”
4. In support of its case, the prosecution relied upon the testimony of
PW3-Prabha Rani, wife of the deceased, PW4-Devendra Kumar, son of the
deceased and PW5-Rameshwar Pathak, a relative of the deceased, who had
lodged the First Information Report (‘the FIR’, for short). It was narrated
in the FIR that after having received information about the assault, the
informant had gone to the house of the deceased where PW3 narrated the
incident to him, based on which the reporting was made by the informant.
The medical evidence was unfolded through the testimony of PW2-Dr.
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R.K. Bhardwaj, who had conducted the post-mortem. He had found
following injuries on the person of the deceased:-
“(i) Incised wound over left anterior part of scalp
4”x1/2” underlaying bone and brain matter cut
inhacranial cavily pilled with blood.
(ii) Incised wound 5” x 1” x 2 1/2” uppermost part
of chest and adjoining anterior part of neck
slightly left side obliquely placed undergone and
blood vessels cut.”
According to him, the injuries were ante-mortem and the deceased
had died as a result of those injuries.
5. In due course, five accused were tried in connection with the
murder of said Balaprasad Pathak for the offence punishable under Section
302 read with Section 149 IPC in Sessions Trial No.173 of 2005 before the
First Additional Sessions Judge, Damoh, Madhya Pradesh. After
considering the evidence on record, the Trial Court concluded that all the
five accused were members of an unlawful assembly and had entered the
house of the deceased on the fateful night with the common object of
causing death of the deceased and as such, they were guilty of the offence
punishable under Section 302 read with Section 149 IPC. Holding them
guilty of the aforesaid offence, by its judgment dated 19.12.2001, the Trial
Court sentenced them to suffer life imprisonment and to pay fine in the sum
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of Rs.500/- each, in default whereof, each of the convicts was to undergo
further rigorous imprisonment of three months. The view so taken by the
Trial Court was challenged by way of Criminal Appeal No.2676 of 2008 by
four accused while Criminal Appeal No.158 of 2009 was filed by accused
Kailash Nayak.
6. Insofar as accused Himmu @ Hemchand and Khushiram, who were
armed with sharp cutting weapons, the High Court found as under:-
“16. Appellants No.2 and 4 namely Himmu @
Hemchand and Khushiram were armed with axe, i.e.
deadly weapons. They inflicted blows on the vital
part of deceased as a result of which, deceased died
on the spot. Evidence of causing injury by axe is
against the appellants Himmu @ Hemchand and
Khushiram. Hence, in our opinion, the Trial Court
has rightly held the appellants guilty for commission
of offence of murder. Other three accused persons
namely; Killy @ Kailash and Devendra (appellants
No. 1 and 3 in Cr. A No. 2676/2008) and appellant
Kailash Nayak (appellant in Cr.A.No. 158/2009) have
been convicted with the aid of Section 149 of IPC.
Allegation against them is that they entered in the
house and they were armed with lathis and Ballam.
From the evidence, this fact has also been proved that
deceased was facing trial of Section 302 of IPC
because he had killed one Rammilan Pathak.”
7. The High Court further found that the other three accused were
stated to be armed with lathis and Ballam but there were no injuries which
could be associated with lathis and Ballam. The High Court, therefore,
gave benefit to said three accused as under:-
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“21.From the aforesaid quoted judgment, the
principle of law is that “the member of unlawful
assembly may have committed for the offence caused
by another accused, if he has knowledge about the act
committed by the main accused”. In the present case,
evidence is that the accused entered the house of
deceased and thereafter, two accused had inflicted
blow by axe. The other accused persons did not give
any blow on the deceased. It is alleged that they were
present on the spot. There was previous enmity
between the accused persons and the deceased, he was
also facing criminal trial. Hence, it cannot be ruled
out that other three persons, who had not inflicted any
injury may have been named along with the other
accused persons.
22. Looking to the evidence on record, in our
opinion, the conviction of three appellants namely;
Killu @ Kailash, Devendra and Kailash Nayak, who
were armed with lathis and Ballam and did not inflict
any blow with the aid of Section 149 of IPC, is not
proper. There is lack of sufficient evidence to prove
them guilty for commission of offence under Section
149 of IPC beyond reasonable doubt. Hence, the
appeal filed by appellant Kailash Nayak (Cr. Appeal
No. 158/2009) is hereby allowed.
23. Cr. Appeal No.2676/2008, filed by four accused/
appellants is partly allowed. Appeal filed by
appellants No. 2 and 4 namely; Himmu @ Hemchand
and Khushiram is hereby dismissed. They are
convicted for commission of offence punishable under
Section 302 of IPC and awarded a sentence of life.
Appellant No.2 Himmu @ Hemchand is on bail. His
bail bonds are hereby cancelled. He is directed to
surrender before the Trial Court for facing remaining
jail sentence.
24. Appeal filed by the appellants No.1 and 3
namely; Killu @ Kailash and Devendra [Cr.Appeal
No.2676/2008] is hereby allowed. They are acquitted
from the charge of Section 302/149 of IPC. The
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judgment passed by the trial Court in regard to
appellants No.1 and 3 namely; Killu @ Kailash and
Devendra, is hereby set aside. Appellants Killu @
Kailash, Devendra and Kailash Nayak, are on bail,
their bail bonds are hereby discharged.”
8. The State, being aggrieved by the order of acquittal of accused
Killu @ Kailash, Devendra and Kailash Nayak, has preferred the instant
appeals. We heard Mr. Varun K. Chopra, Deputy Advocate General
(Madhya Pradesh), in support of the Appeal and Mr. S.K. Shrivastava and
Mr. R.R. Rajesh, learned Advocates who appeared for three acquitted
accused.
9. Since the instant case depends upon the extent and application of
the principle of vicarious liability under Section 149 of the IPC, at the
outset, we may consider the leading case of Masalti vs. State of U.P.1
The
submission of the appellants therein was that mere presence in an assembly
would not make a person member of an unlawful assembly unless it was
shown that he had done something or omitted to do something which
would make him a member of unlawful assembly. Reliance was placed by
said appellants on the earlier judgment of this Court in Baladin vs. State
of Uttar Pradesh2
. The issue was dealt with as under:-
“… … The observation of which Mr. Sawhney relies,
prima facie, does seem to support his contention; but,
1 (1964)8 SCR 133
2 AIR 1956 SC 181
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with respect, we ought to add that the said observation
cannot be read as laying down a general proposition
of law that unless an overt act is proved against a
person who is alleged to be a member of an unlawful
assembly, it cannot be said that he is a member of
such an unlawful assembly. In appreciating the effect
of the relevant observation on which Mr. Sawhney has
built his argument, we must bear in mind the facts
which were found in that case. It appears that in the
case of Baladin2
, the members of the family of the
appellants and other residents of the village had
assembled together; some of them shared the common
object of the unlawful assembly, while others were
merely passive witnesses. Dealing with such an
assembly, this Court observed that the presence of a
person in an assembly of that kind would not
necessarily show that he was a member of an unlawful assembly. What has to be proved against a
person who is alleged to be a member of an unlawful
assembly is that he was one of the persons
constituting the assembly ,and he entertained along
with the other members of the assembly the common
object as defined by s.141, I.P.C. Section 142 provides
that whoever, being aware of facts which render any
assembly an unlawful assembly, intentionally joins
that assembly, or continues in it, is said to be a
member of an unlawful assembly. In other words, an
assembly of five or more persons actuated by, and
entertaining one or more of the common objects
specified by the five clauses of s. 141, is an unlawful
assembly. The crucial question to determine in such a
case is whether the assembly consisted of five or more
persons and whether the said persons entertained one
or more of the common objects as specified by s.141.
While determining this question, it becomes relevant
to consider whether the assembly consisted of some
persons who were merely passive witnesses and had
joined the assembly as a matter of idle curiosity
without intending to entertain the common object of
the assembly. It is in that context that the observations
made by this Court in the case of Baladin2
assume
significance; otherwise, in law, it would not be correct
to say that before a person is held to be a member of
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an unlawful assembly, it must be shown that he had
committed some illegal overt act or had been guilty of
some illegal omission in pursuance of the common
object of the assembly. In fact, s.149 makes it clear
that 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; and that
emphatically brings out the principle that the
punishment prescribed by s.149 is in a sense vicarious
and does not always proceed on the basis that the
offence has been actually committed by every
member of the unlawful assembly. Therefore, we are
satisfied that the observations made in the case of
Baladin2
must be read in the context of the special
facts of that case and cannot be treated as laying down
an unqualified proposition of law such as Mr.
Sawhney suggests.”
(underlined by us)
10. After considering the cases on the point including Masalti1
, the
order of acquittal passed by the High Court was set aside by this Court in
State of Maharashtra vs. Ramlal Devappa Rathod and others3
. Relevant
paragraphs of the decision are:-
“22. We may at this stage consider the law of
vicarious liability as stipulated in Section 149 IPC.
The key expressions in Section 149 IPC are:
(a) if an offence is committed by any member of
an unlawful assembly;
3 (2015) 15 SCC 77
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(b) in prosecution of common object of that
assembly;
(c) which the members of that assembly knew to
be likely to be committed in prosecution of that
object;
(d) every person who is a member of the same
assembly is guilty of the offence.
This section makes both the categories of persons,
those who committed the offence as also those who
were members of the same assembly liable for the
offences under Section 149 IPC, if other requirements
of the section are satisfied. That is to say, if an offence
is committed by any person of an unlawful assembly,
which the members of that assembly knew to be likely
to be committed, every member of that assembly is
guilty of the offence. The law is clear that
membership of unlawful assembly is sufficient to hold
such members vicariously liable.
23. It would be useful to refer to certain decisions of
this Court. In State of U.P. v. Kishanpal4
it was
observed: (SCC p. 93, para 47)
“47. … It is well settled that once a membership
of an unlawful assembly is established it is not
incumbent on the prosecution to establish
whether any specific overt act has been assigned
to any accused. In other words, mere membership
of the unlawful assembly is sufficient and every
member of an unlawful assembly is vicariously
liable for the acts done by others either in the
prosecution of the common object of the unlawful
assembly or such which the members of the
unlawful assembly knew were likely to be
committed.”
Further, in Amerika Rai v. State of Bihar5
it was
observed as under: (SCC p. 682, para 13)
4 (2008) 16 SCC 73
5 (2011) 4 SCC 677
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“13. The law of vicarious liability under Section
149 IPC is crystal clear that even the presence in
the unlawful assembly, but with an active mind,
to achieve the common object makes such a
person vicariously liable for the acts of the
unlawful assembly.”
24. The liability of those members of the unlawful
assembly who actually committed the offence would
depend upon the nature and acceptability of the
evidence on record. The difficulty may however arise,
while considering the liability and extent of
culpability of those who may not have actually
committed the offence but were members of that
assembly. What binds them and makes them
vicariously liable is the common object in prosecution
of which the offence was committed by other
members of the unlawful assembly. Existence of
common object can be ascertained from the attending
facts and circumstances. For example, if more than
five persons storm into the house of the victim where
only few of them are armed while the others are not
and the armed persons open an assault, even unarmed
persons are vicariously liable for the acts committed
by those armed persons. In such a situation it may not
be difficult to ascertain the existence of common
object as all the persons had stormed into the house of
the victim and it could be assessed with certainty that
all were guided by the common object, making every
one of them liable. Thus when the persons forming
the assembly are shown to be having same interest in
pursuance of which some of them come armed, while
others may not be so armed, such unarmed persons if
they share the same common object, are liable for the
acts committed by the armed persons.”
11. If we now consider the facts in the present matter, the case lies in a
short compass. The case of the prosecution that five accused had entered
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the house of the deceased on the fateful night is accepted. It is also found
that each one of them was separately armed and two of them were armed
with sharp cutting weapons. As far as other three accused i.e. the present
respondents were concerned, the first one had a Ballam while the other two
were having lathis. It is true that the deceased had only two injuries on the
person which were the cause of death. To the extent that the persons who
were armed with sharp cutting weapons were found responsible for causing
the death is also not disputed or challenged. The evidence on record fully
establishes that the present respondents had also accompanied those two
accused persons who were found responsible for the crime and all of them
had entered the house of the deceased around midnight. It is crucial to note
that the incident did not happen in any public place where the presence of a
non-participating accused could, at times, be labelled as that of an innocent
bystander. The role played by each one of them was clear and specific.
They had stormed into the house in the dead of the night.
12. On the strength of the principles accepted and laid down in the
cases as aforementioned, their liability is fully established. Merely because
the other three accused persons i.e. the present respondents had not used
their weapons does not absolve them of the responsibility and vicarious
liability on which the very idea of charge under Section 149 IPC is
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founded. For the application of the principle of vicarious liability under
Section 149 IPC what is material to establish is that the persons concerned
were members of an unlawful assembly, the common object of which was
to commit a particular crime. The fact that five persons were separately
armed and had entered the house of the deceased during night time is
clearly indicative that each one of them was a member of that unlawful
assembly, the object of which was to commit the crime with which they
came to be charged in question. The High Court was not justified in
granting benefit to those three accused.
13. The presence of the respondents in the house of the deceased; the
fact that they were armed; the fact that all of them had entered the house
around midnight and further fact that two out of those five accused used
their deadly weapons to cause the death of the deceased was sufficient to
attract the principles of vicarious liability under Section 149 IPC.
14. The High Court was not justified in entertaining a doubt that it
could not be ruled out that the respondents were merely named along with
the other accused persons. There was absolutely no room for such doubt.
The testimony of the eye witnesses namely the wife and the son, who were
occupants of the same house, was quite clear and cogent.
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15. We have, therefore, no hesitation in allowing these Appeals. We,
thus, set aside the view taken by the High Court insofar as the present
respondents namely Killu @ Kailash, Devendra and Kailash Nayak are
concerned. We set aside their acquittal as recorded by the High Court and
restore the judgment and order of conviction passed by the Trial Court in
Sessions Trial No. 173 of 2005 against said respondents.
16. The respondents shall surrender within three weeks, failing which
the concerned police shall immediately arrest them and send them to
custody to undergo the sentence imposed upon them. A copy of this
Judgment shall be sent to the concerned Chief Judicial Magistrate and the
Police Station for immediate compliance.
………………………J.
[Uday Umesh Lalit]
………………………J.
[Indu Malhotra]
New Delhi;
November 19, 2019.
