Mere Plea Of ‘Not Being Armed’ Would Not Absolve A Person From Liability Under Section 149 Of IPC: Bombay High Court

The Bombay High Court, Aurangabad Bench in an appeal filed by five appellants challenging the order of conviction has held that a mere plea of ‘not being armed’ would not absolve a person from liability under Section 149 of the Indian Penal Code (IPC).

A Division Bench comprising Justice Vibha Kankanwadi and Justice Abhay S. Waghwase observed, “Once the case of a person falls within the ingredients of Section 149 IPC, the question that he did nothing on his own, would be immaterial, as everybody is considered to be aware of the probable and natural outcome of the acts with which they have formed unlawful assembly. Mere plea ‘not being armed’ would not absolve a person from liability. Once their gathering has been demonstrated to have indulged in unlawful act, sharing of common intention comes into play.”

The Bench said that the ratio decidendi is that, Section 149 of the IPC makes every person who is a member of unlawful assembly at the time of committing the offence, guilty of that offence.

Advocates Mahesh P. Kale and Sharda P. Chate appeared for the appellants while APP A.V. Deshmukh appeared for the State.

Brief Facts -

The informant had a dispute with the appellants over the field taken by him for cultivation and the deceased who was the brother of informant, was helping him in cultivating the field. One morning, there was a quarrel between the deceased and appellant as a result of which the informant intervened and brought his brother to the house. Thereafter, the informant went to the field, and on a call received from a man informing about a quarrel again taking place between the deceased and accused, he rushed home.

The informant saw one of the accused who was armed with a sickle, and another accused, who was armed with a knife, assaulting the deceased. When the wife of the deceased intervened, the accused indulged in a scuffle with her. In the assault, the deceased succumbed on the spot, and therefore, the appellants came to be arrested. The Additional Session Judge convicted the appellants under Sections 144, 148, 302 r/w 149 of IPC aggrieved by which the appellants preferred an appeal before the court.

The High Court in view of the facts and circumstances of the case noted, “After the initial instance of quarrel between deceased and Dattarao, subsequently also when deceased allegedly left house, all five appellants had come there. They are apparently five in number. Some of them were armed. … Therefore, it is joint effort.”

The Court said that definite roles were ascribed to each of the appellants reflecting their participation and that their gathering was with a common object which they have achieved.

“The main occurrence at noon was a sequel and consequence of quarrel which had taken place at around 9.00 am in the morning and therefore above submissions about conviction of appellant nos. 1, 2 and 3 i.e. Hanuman, Meenabai and Sojarbai, to be illegal, cannot be accepted. … No doubt witnesses are near and dear ones but only three out of five. PW2 Ganesh and PW3 Babruwan have categorically stated about they present in the house and witnessing the incident. They have defined the roles of each of the accused and have clearly stated who was holding what. They also seem to be aware of the background of the assault”, also noted the Court.

The Court added that with such evidence on record and the testimony of the witnesses having remained unshaken on the core of the prosecution case about the murderous assault, the case of the prosecution deserves to be accepted as proved.

“The reasons assigned for accepting the case of prosecution are convincing. No fault can be found in the appreciation of evidence and the impugned judgment”, concluded the Court.

Accordingly, the Court dismissed the appeals.

Cause Title- Hanuman & Ors. v. State of Maharashtra (Neutral Citation: 2023:BHC-AUG:15885-DB)

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