Case BriefsSupreme Court

Supreme Court: The bench of CT Ravikumar* and Sudhanshu Dhulia, JJ  has held that merely because some of the convicts had died during the pendency of the case, it would not lead to non applicability of the provision for constructive/vicarious liability, arising out of the achievement of the common object by the unlawful assembly.

The Court was deciding the case where ten persons were convicted for committing offences under Sections 324/149 and 323/149. They jointly filed an appeal before the Allahabad High Court. However, during the pendency of the appeal seven of them died and consequently, qua them the Appeal was dismissed as abated. The appeal of the remaining three was dismissed and the conviction and the sentences were confirmed. Only two out of these three jointly preferred an appeal before the Supreme Court but one of them died.

The Question before the Court was whether the reduction in number of the convicts below five on account of death of the co-accused got any impact or effect on the surviving convict(s) in the matter of consideration of his/their, vicarious liability in view of Section 149, I.P.C.

Answering the issue, the Supreme Court observed that there can be no two views on the position that reduction of number of accused/convicts in an appeal, below five on account of acquittal of co-accused/co-convicts and such reduction in numbers below five due to death of co-convicts are different and distinct.

While, the term ‘abatement’ or ‘abate’ has not been defined in Cr.P.C., as per Black’s Law Dictionary, 10th Edition, abatement means ‘the discontinuation of criminal proceedings before they are concluded in the normal course of litigation, as when the defendant dies’.

Hence, an appeal against conviction (except an appeal from a sentence of fine) would abate on the death of the appellant as in such a situation, the sentence under appeal could no longer be executed. The abatement is certainly different from acquittal and a mere glance at the proviso to Section 394 (2), Cr.P.C., will make this position very clear.

Applying the law on the case at hand, the Court observed that the mere fact that seven out of the ten convicts died, either during the pendency of Criminal Appeal before the High Court or during the pendency of appeal before the Supreme Court, could not be a reason, by that itself, to canvass non applicability of the provision for constructive/vicarious liability, arising out of the achievement of the common object by the unlawful assembly.

The Court confirmed the finding of the High Court after observing that the very fact that the members of the unlawful assembly, ten in numbers assembled at the place armed not only with firearms but with other lethal weapons as well and the manner in which they committed the violence and killed one Dalip Singh over a property dispute, would definitely lend support to the said finding.

[Gurmail Singh v. State of Uttar Pradesh, 2022 SCC OnLine SC 1439, decided on 17.10.2022]

*Judgement by: Justice CT Ravikumar

Kerala High Court
Case BriefsHigh Courts


Kerala High Court: In a case relating to a complaint for offences under Sections 143, 147, 149 and 283 of the Penal Code, 1860 and Sections 38 r/w section 52 of the Kerala Police Act, 1960, for formation of Statewide human chain by the Communist Party of India to compel the Union Government to withdraw from the Association of Southeast Asian Nations (ASEAN) free trade agreement, Bechu Kurian Thomas, J has observed that the continuance of proceedings against the petitioners is an abuse of the process of court as the conduct alleged against the petitioners do not satisfy the ingredients of Section 141 of IPC, and when the allegations do not satisfy the ingredients of unlawful assembly, the offences under Sections 143, 147 and 149 of IPC cannot be attracted. Further in the absence of any allegation against petitioners, proceeding in a criminal action for the offence under Section 283 IPC is an abuse of the process of law.

The Court referred to Section 141 of IPC and observed that it indicates that every assembly of five or more persons by itself will not become an unlawful assembly, as an assembly of five or more people will become unlawful only when they have a common object, and the said object falls within the categories mentioned under Section 141 of IPC. When the common object of the assembly does not fall within any of the five categories specified in Section 141 even if the number of the assembly is more than five, the act alleged will not attract the offence of unlawful assembly. Thus, the essence of the offence of unlawful assembly lies in the consensus of purpose of more than five persons to commit an act specified in 141 of IPC.

The Court referred to the decision in Aravindan v. State of Kerala, 1983 SCC OnLine Ker 26, wherein it was observed that “the mere fact that an assembly consists of five or more persons is likely to disturb the public peace does not prove that the common object of the assembly is one of those enumerated in the Section, but Section 151 of Penal Code may come in and that the common object must be an immediate one and not to be carried out at some future time”.

The Court, after examining the complaint, observed that it is seen that though the complainant alleges that more than five persons had assembled, there is no mention of any of the ingredients that can attract any one of the five facets described as ‘first to fifth’ of Section 141 of IPC. The respondent has no case that the petitioner had a common object to commit any of the offences specified in Section 141 of IPC, and the assembly was formed only to express their protest against the Government signing an agreement with the ASEAN countries. Further, no criminal force or show of criminal force is alleged to have been committed by any member of the assembly, and as Section 141 of IPC significantly uses the words ‘criminal force’ in most of the provision, thus, a protest or an assembly of persons without any criminal force or show of criminal force would not make the assembly unlawful.

It was also observed that an assembly of more than five persons gathered for a peaceful protest cannot fall within the term unlawful assembly, as the right to protest peaceably is an essential ingredient of the fundamental right under Article 19(1)(a) and 19(1)(b) of the Constitution of India. Thus, an assembly of persons without arms or without criminal force or without any intent to commit an offence can only be a lawful assembly, which is not prohibited. Further, if every assembly is regarded as offensive conduct, then the right to freedom of speech and expression and the right to form an assembly guaranteed under the Constitution will be a dead letter.

The Court also observed that the right to dissent is the core of every democratic establishment, and the constitutional scheme of our country embodies the salutary principle of the right to dissent. Further, merely because the dissent is not acceptable to the majority, is not a reason to initiate criminal action unless the dissent was coupled with violent, disorderly or damaging conduct by any member of the assembly.

The Court viewed that there is no allegation of any criminal force used or presence of any common object for committing an offence or that the human chain lasted indefinitely. There is also no case where there was any inconvenience or obstruction to the public for an extended period. Thus, the conduct alleged against the petitioners does not satisfy the ingredients of Section 141 of IPC, and when the allegations do not satisfy the ingredients of unlawful assembly, the offences under Sections 143, 147 and 149 IPC cannot be attracted. Therefore, petitioners cannot be prosecuted for the aforesaid offences.

Moreover, the Court applied the principle in Section 95 IPC that embodies the principle of ‘deminimis non curat lex’ meaning that “law does not consider trifles and viewed even if it is assumed that any slight obstruction was caused to the public, the same was only a trifle, as this is evident from the fact that no one other than the complainant had any grievance. Thus, the continuance of proceedings against the petitioners is an abuse of the process of court. Therefore, petitioners cannot be prosecuted for the aforesaid offences.

[Prakash Karat v. State of Kerala, 2022 SCC OnLine Ker 5243, decided on 13.10.2022]

Advocates who appeared in this case :

For Petitioners: Advocate Alan Papali

Senior Advocate M.K. Damodaran

Advocate Gilbert George Correya

Advocate Sojan Micheal

Advocate. P.K. Vijayamohanan

For Respondents

Senior Director General of Prosecution T.A Shaji

Senior Government Pleader P.Narayanan

Senior Government Pleader Sajju.S.

Case BriefsSupreme Court


Supreme Court: In an appeal against the Karnataka High Court's reversal of acquittal of 2 out of the 22 accused acquitted by the Sessions Court in a murder case, the bench of V. Ramasubramanian*and Indira Banerjee, JJ has reversed the High Court's verdict observing that there were glaring contradictions between the testimony of the witnesses.

In this case all the 22 accused armed with deadly weapons formed themselves into an unlawful assembly and committed trespass by entering into the house of the deceased and committed his murder, in furtherance of a common object. The Sessions Court acquitted all 22 accused including the appellants, however, the High Court convicted the appellants, by observing that there was consistency in the evidence of eyewitnesses with regard to their participation in the commission of the offence and the Trial Court erroneously acquitted them, when there was sufficient material on record to hold them guilty.

The Court observed that the above findings of the High Court appear to be illogical as the primary charge of the prosecution was that all the 22 accused, formed themselves into an unlawful assembly with the common object of committing the murder of the deceased and that all of them being members of the unlawful assembly were armed with deadly weapons and that they committed the offence of rioting, trespass and murder.

The Court observed that:

“We do not know how, in the facts and circumstances of the case, the conviction of only 2 out of the 22 accused can be sustained and that too only for the offence under Section 302 when the allegation of unlawful assembly, common object, trespass, rioting etc. are held not proved against all of them”.

Moreover, the State has not come up with any appeal against the acquittal of all the other accused nor was there any explanation as to why there were two First Information Reports.

The Court took note of the ruling in Arvind Kumar v. State of Rajasthan, 2021 SCC Online SC 1099 wherein the court held that “the principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have strict application to the criminal jurisprudence in our country”, and thus viewed that the High Court was right that the evidence of eyewitnesses cannot be rejected by invoking the theory of ‘falsus in uno falsus in omnibus', as this principle may not have unadulterated application to criminal jurisprudence. However, when there are glaring contradictions between the testimony of these two witnesses on the type of material object used and even on the role of one accused, the very foundation of the case of the prosecution stood shaken.

The Court observed that the High Court should have come up with stronger and cogent reasons than what has been recorded as the law on the scope of Section 378 of the Code of Criminal Procedure (CrPC), is too well settled.

Placing reliance on Ravi Sharma v. Government of NCT of Delhi, 2022 SCC Online SC 859 the Court viewed that the impugned judgment of the High Court is not in accordance with the law traced in this decision, hence, the conviction of the appellants cannot be sustained.

[Ramabora v. State of Karnataka, 2022 SCC OnLine SC 996 , decided on 10.08.2022]

*Judgment by: Justice V. Ramasubramanian

Case BriefsSupreme Court

Supreme Court: In a case where an accused merely pointed to the house where the victim was hiding, thereby helping a fully armed “murderous mob” locate the victim, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the mere fact that the accused was not brave enough to conceal where the victim was hiding did not make him a part of the unlawful assembly under Section 149 of the IPC.

A house was being constructed on land stated to be of the victim named Abdul Wahab and others when the accused persons came in a mob towards the house of the victim armed with lathis, spears, daggers, etc. The victim tried to escape by taking shelter in the house of one Shorab Ali but did not succeed as the house was surrounded, walls of the house were broken and a mounted assault made on the victim. Different accused were assigned different roles to the extent of the weapon they wielded. The body of the victim was then carried and disposed of by throwing in the river Brahmaputra.

Charges were framed against the accused under Sections 147/148/324/302/201 read with Section 149 of the IPC and the Sessions Judge convicted all the 32 accused and sentenced them to life imprisonment vide judgment dated 8.5.2015.

The Supreme Court, in the case at hand, was only concerned with the appeal filed by Taijuddin, one of the accused, claiming that his role was only of having pointed out the house where the victim was hiding.

The Court considered the following key factors while deciding the case:

  • The victim’s son, in his testimony, stated “Taijuddin showed that my father Abdul Wahab was inside the house of Sorab.”
  • There were inconsistency in the testimonies of the witnesses – inasmuch as the family members of the deceased never even pointed a finger at the appellant as also some of the other witnesses, while the witnesses who did point a finger only assigned the role of pointing out the place where the victim was hiding.
  • The appellant was present at the place of the incident at the early hours in the morning (around 6:30 AM) because of his house being almost adjacent to where the deceased was hiding.
  • He did not come along with the mob, was not carrying any weapon and did not assault anybody.

The Court noticed that the only evidence of his involvement is that he pointed to the house where the victim was hiding.

“Given that a murderous mob fully armed was hunting for him, the appellant at best can be said not to be brave enough to conceal the deceased or even to have not pointed out where he was, but that by itself cannot rope in the appellant under Section 149 of the IPC.”

In Subal Ghorai v. State of West Bengal, (2013) 4 SCC 607, the Supreme Court had held that constructive liability cannot be stretched to lead to the false implication of innocent bystanders. The Court considered the possibility of often people gathering at the scene of offence out of curiosity but that did not make them share the common object of the assembly. The Court held that,

“The Court must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. There must be reasonable direct or indirect circumstances which lend assurance to the prosecution case that they shared common object of the unlawful assembly. Not only should the members be part of the unlawful assembly but should share the common object at all stages. This has to be based on the conduct of the members and the behaviour at or near the scene of the offence, the motive for the crime, the arms carried by them and such other relevant considerations.”

Considering the aforementioned law laid down by the Supreme Court and the facts and material before the Court, it was held that the case against the appellant was not proved beyond reasonable doubt. In fact, no case seemed to have been proved against the appellant given the role assigned to him in the testimony of the witnesses. The accused was, hence, entitled to a clean acquittal in the given facts.

[Taijuddin v. State of Assam, 2021 SCC OnLine SC 1154, decided on 01.12.2021]

*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Case BriefsSupreme Court

Supreme Court: Explaining the difference between Sections 34 and 149 of the IPC, the 3-judge bench of NV Ramana, Surya Kant* and Aniruddha Bose, JJ has held that

“Although both Section 34 and 149 of the IPC are modes for apportioning vicarious liability on the individual members of a group, there exist a few important differences between these two provisions. Whereas Section 34 requires active participation and a prior meeting of minds, Section 149 IPC assigns liability merely by membership of the unlawful assembly. In reality, such ‘common intention’ is usually indirectly inferred from conduct of the individuals and only seldom it is done through direct evidence.”

The Court was hearing a case where all the accused had individually inflicted blows on the victim’s body using axes. The appellants made death threats to the complainant on 24.01.1998 if he were to attempt to irrigate his fields and then they used sharp edged weapons the very next day and further declared that they would not rest till they killed the complainant.

Applying the aforementioned principles to the case, the Court noticed that both the common object and the common intention were traced back to the same evidence, i.e., evaluating the conduct of the accused as narrated by the injured and the eye-witness. Further, a perusal of Section 313 CrPC statement showed that the appellants were expressly confronted with their specific role in the offence: that each of them had individually attacked the complainant with a deadly object in furtherance of the common intention of killing him.

The Court, hence, held that the appellants did not suffer any adverse effect when the High Court held the three of them individually guilty for the offence of attempted murder, without the aid of Section 149 IPC.

Noticing that an offence under Section 307 IPC was clearly made out against each of the appellants, the Court held that the medical experts have in their depositions clearly explicated that the weapons used and the injuries inflicted were more than sufficient to cause death in ordinary course of nature. Also, the facts of the case manifest the appellant’s intention to inflict bodily injury knowing fully that such injuries would ordinarily lead to the complainant’s death.

“The gravity of the injuries is beyond doubt. Not only were there seven injuries, some of which were deep cuts on vital parts of the body including on the head (above the ear); but the appellants broke all the bones in the complainant’s feet below the knee. Most appallingly, the injuries have led to amputation of an entire limb, leaving the complainant permanently disabled.”

That apart, even the requirements of Section 34 of IPC are well established as the attack was apparently pre-meditated. The incident was not in a spur-of-the-moment. The appellants had previously threatened the complainant with physical harm if he were to attempt to irrigate his fields.

Noticing that there was nothing on record to suggest that the complainant caused any provocation, the Court held that specific roles have been attributed to each of the appellants by the injured and the solitary eye-witness, establishing their individual active participation in the crime.

On the issue of mitigation of sentence, the Court said that it cannot be oblivious of the fact that the appellants and their deceased co-accused were all armed with deadly weapons.

“They surrounded the complainant and in a brutal attack caused him gruesome injuries and disabled him for life.”

It further noticed that the appellants have not undergone even half of their sentence period.

“Having enjoyed the more productive part of their lives outside jail cannot be, per se, taken as a mitigating factor. Any misplaced sympathy with the appellants is likely to cause injustice to the victim of the crime.”

The Court, hence, refused to show leniency and reduce the sentence.

[Rohtas v. State of Haryana, 2020 SCC OnLine SC 1014, decided on 10.12.2020]

Case BriefsSupreme Court

Supreme Court: In the case where the culpability of an accused participating in an unlawful assembly was in question, the bench of S.A. Bobde and L. Nageswara Rao, JJ said that the presence of an accused as part of an unlawful assembly, when not as a curious onlooker or a bystander, suggests his participation in the object of the assembly but it could well be that an accused had no intention to participate in the object of the assembly.

Explaining with the help of an example, the Court said that if the object of the assembly is to murder someone, it is possible that the accused as a particular member of the assembly had no knowledge of the intention of the other members whose object was to murder, unless of course the evidence to the contrary shows such knowledge. But having participated and gone along with the others, an inference whether inculpatory or exculpatory can be drawn from the conduct of such an accused.

According to the Court, the point of time at which the accused discovered that the assembly intended to kill the victim, the attempt, if any, made by him/her to stop the assembly from pursuing the object and if he/she dissociate from the assembly by getting away upon failing to stop the assembly, are the issues that will determine whether an accused shared the common object in the assembly. Without evidence that the accused had no knowledge of the unlawful object of the assembly or without evidence that after having gained knowledge, he attempted to prevent the assembly from accomplishing the unlawful object, and without evidence that after having failed to do so, the accused disassociated himself from the assembly, the mere participation of an accused in such an assembly would be inculpatory. [Kattukulangara Madhavan v. Majeed, 2017 SCC OnLine SC 299, decided on 30.03.2017]