Presence Of Accused As Part Of Unlawful Assembly Itself Is Sufficient For Conviction U/S 149 IPC: Supreme Court

The Supreme Court reiterated that when the charge is under Section 149 of the Indian Penal Code (IPC), the presence of the accused as part of the unlawful assembly itself is sufficient for conviction.

The Court reiterated thus in a batch of two criminal appeals against the order of the Bombay High Court by which it upheld the conviction of the accused persons.

The two-Judge Bench of Justice Abhay S. Oka and Justice Pankaj Mithal enunciated, “The accused A-5 and A-6 have been charged under Section 149 IPC. Therefore, their presence with the other co-accused amounted to an unlawful assembly which is sufficient for conviction, even if they may have not actively participated in the commission of the crime. It goes without saying that when the charge is under Section 149, the presence of the accused as part of the unlawful assembly itself is sufficient for conviction.”

The point which arose for consideration before the Bench was whether the accused persons could also be convicted as they were not alleged to have been armed with any weapon and have not been assigned any specific role.

AOR Sudhanshu S. Choudhari represented the appellants/accused while Advocate Siddharth Dharmadhikari represented the respondent/State.

Factual Background -

The allegations in this case were related to a group assault conducted by the accused persons with deadly weapons which resulted in one death and an injury. The High Court dismissed the criminal appeals of the appellants and confirmed the judgment of the Trial Court convicting the accused nos. 1-6 including the appellants i.e., (A-3, A-5, & A-6) for the offences punishable under Sections 147, 148, 302 read with 149 and 307 read with 149 of IPC and at the same time acquitting A-7 and A-8.

The Trial Court acquitted accused Nos. 7 & 8 and convicted the remaining accused nos. 1-6 and sentenced them for an offence under Section 302 read with 149 of IPC with rigorous imprisonment for life and fine of Rs. 100/-. Being aggrieved by this, the appellants approached the Apex Court. The conviction of the appellants was challenged mainly on the ground that there was no active participation of them so as to form a common object which would warrant application of Section 149 IPC.

The Apex Court in the above regard observed, “In view of the aforesaid testimony of the eye-witnesses, the courts below have rightly held that the deceased Mohan Mungase was killed by the accused persons on the fateful day in the house of Mama Bhojane. … The aforesaid accused persons may not be armed and may not have been assigned any specific role but nonetheless their presence at the scene of the crime along with other accused persons is duly established. They were held to be part of the unlawful assembly with common object.”

The Court said that the appellants cannot escape the conviction. It noted that there is hardly any scope for interference with the conviction and sentence of A-3 as he was assigned an active role in the crime.

“All the eyewitness has categorically stated about his presence and that he was armed with deadly weapon, i.e., sword and that he had also wielded blows not only upon the deceased but upon the injured persons. In the light of the aforesaid evidence, there is no flaw in his conviction”, it added.

Furthermore, the Court said that the minimum sentence for committing murder is life imprisonment and therefore is not liable to be reduced and in the event A-3 has already undergone sufficiently long incarceration and is eligible for remission, he may or as a matter of fact even the others are at liberty to apply for remission for premature release in accordance with the policy of the State.

Accordingly, the Supreme Court dismissed the appeals.

Cause Title- Suresh Dattu Bhojane & Anr. v. State of Maharashtra (Neutral Citation: 2024 INSC 468)

Appearance

Appellants: AORs Sudhanshu S. Choudhari, K. Rajeev, Advocates Nitin S. Tambwekar, Seshatalpa Sai Bandaru, and AOR K. Rajeev.

Respondent: Advocate Siddharth Dharmadhikari, AOR Aaditya Aniruddha Pande, Advocates Bharat Bagla, Sourav Singh, Aditya Krishna, Yamini Singh, and Anoop Raj.

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