Unlawful Assembly: Accused Persons Specifically Named In FIR But Tried Separately Will Still Attract Section 149 IPC- Reiterates SC

The Supreme Court has reiterated that even though all the accused persons forming part of an unlawful assembly were being tried separately but were specifically named in the FIR, Section 149 of the Indian Penal Code (IPC) would be attracted and every person of that unlawful assembly would be guilty of that offence.

The Bench of Justice MR Shah and Justice C.T. Ravikumar observed that ”...once the respondent – accused was found to be member of the unlawful assembly of more than five persons and he actually participated in commission of the offence may be the fatal blow might have been given by the another accused, in the present case Bhupendra Singh, still with the aid of Section 149 IPC, Respondent Accused can be convicted for the offence under Section 302 IPC with the aid of Section 149 IPC.”

Senior Advocate Siddartha Dave appeared as Amicus Curiae for the appellant and Advocate Vishal Meghwal appeared for the respondent- State.

In this case, the appeal was preferred against the order of the Rajasthan High Court whereby the appeal preferred by the respondent- accused was partly allowed and the conviction for the offence punishable under Section 302 /149 of Indian Penl Code, 1860 (IPC) was set aside but was convicted under Section 323 of IPC.

Factual Background

The respondent-accused along with other co-accused had allegedly attacked the brother of the complainant. An FIR was registered against five persons but the chargesheet was filed only against two accused for offences punishable under Sections 341, 323, 325/34, 308/34 and 302 and alternatively, Section 302/34 IPC.

One of the accused- Bhupinder Singh died during trial and proceedings against him stood abated. Subsequently, an application under Section 319 of the Criminal Procedure Code, 1973 (CrPC) was submitted by the prosecution to try the remaining three accused as accused and passed a summoning order of additional accused.

But the three accused absconded for several years, the trial against the respondent- accused was separated and was convicted for the offence punishable under Sections 147, 323, 302/149 IPC.

The respondent preferred an appeal before the High Court whereby the conviction was set aside on the ground that no case was made out for conviction with the aid of Section 149 IPC as there was no assembly of five accused. Aggrieved of the order, the complainant approached the Apex Court.

Court's Observations 

The Apex Court said that five accused persons were named in the FIR and there were specific allegations against them in the FIR. Therefore, when five persons were specifically named in the FIR and five persons were facing the trial separately, Section 149 IPC would be attracted.

Further, on perusing the medical record, the Apex Court noted that the victim died due to the shock of wound at spinal bone of neck, which was caused by the accused Bhupendra Singh.

The Apex Court observed that “...the respondent accused being a part of the unlawful assembly and who also participated in commission of the offence, he shall also be liable 25 to be convicted for the offence under Section 302 IPC with the aid of Section 149 IPC, even for the act of the accused Bhupendra Singh who gave the vital blow.” 

Therefore, the Court held that “In view of the above facts and circumstances of the case the High Court has seriously erred in observing that no case is made out to invoke Section 149 IPC...order passed by the High Court acquitting the accused for the offence under Section 302 read with Section 149 IPC is unsustainable and the same deserves to be quashed and set aside.”

Accordingly, the appeal was allowed.

Cause Title- Surendra Singh v. State of Rajasthan and Anr. 

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