Supreme Court: If two accused out of six accused are acquitted by high court in appeal, offence U/S 149 of IPC will not survive against remaining four accused

A combined reading of Section 141 and Section 149 IPC (supra) show that an assembly of less than five members is not unlawful assembly within the meaning of Section 141 and cannot, therefore, form the basis for conviction for an offence with the aid of Section 149 IPC. The effect of the acquittal of the two accused persons by the High Court and without the High Court finding that some other known or unknown persons were also involved in the assault, would be that for all intent and purposes the two acquitted accused persons were not members of the unlawful assembly. Thus, only four accused could be said to have been the members of the assembly but such an assembly which comprises of less than five members is not ah unlawful assembly within the meaning of Section 141 IPC. The existence of an unlawful assembly is a necessary postulate for invoking Section 149 IPC. Where the existence of such an unlawful assembly is not proved, the conviction with the aid of Section 149 IPC cannot be recorded or sustained. The failure of the prosecution to show that the assembly was unlawful must necessarily result in the failure of the charge under Section 149 IPC. Consequently, the conviction of appellants 2 to 4 for an offence under Section 326/149 IPC cannot be sustained and the same would be the position with regard to the conviction of all the appellants for other offences with the aid of Section 149 IPC also. {Para 10}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 237 of 1993 

Decided On: 24.02.1993

Subran and Ors. Vs. State of Kerala

Hon'ble Judges/Coram:

M.N. Venkatachaliah, C.J., B.P. Jeevan Reddy and Dr. A.S. Anand, JJ.

Author: A.S. Anand, J.

Citation: 2008(4) MHLJ (Crl)419,2009 ALLMR (Cri) 359, MANU/SC/0546/1993.

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Bombay HC: How to appreciate prosecution evidence if there is contradiction in evidence of Victim and medical opinion?

The Complainant was specific in the FIR (Exhibit 15) that the respondents No. 1 and 2 assaulted with the axe on his head but used the reverse side of the axe on his right calf. He thus knew the difference between the axe and the reverse side of the axe at the time of immediate filing of the FIR. The Medical Officer-PW7 Dr. Baburao was, however, sure that none of the injuries suffered by PW1 Babu was possible by any sharp edged weapon. The nature of the injuries, as detailed supra, would show that none of the injuries was caused by sharp weapon. {Para 10}

11. PW2 - Siddhu, the son of PW1 Babu deposed that he was one kilometer away from the spot to graze the catties and upon hearing the shout from the field, he reached there i.e. the field and saw the incident. Thus he was to travel for one kilometer on foot and still according to him, he has seen the assault. He has suffered two injuries as detailed supra. Those are swelling and contusion and therefore, possible by fall.

12. Not only this, PW2 Siddhu suddenly brought on record presence of another eye witness Chandu. This was not only the improvement in the prosecution case as is highlighted in his cross-examination but said Chandu was not examined by the prosecution. In the circumstances, when the learned Chief Judicial Magistrate has taken reasonable and probable view of the material before him, in the present appeal against acquittal, there is no need to interfere. The appeal is, therefore, liable to be dismissed. In the result, the appeal is hereby dismissed. The bail bonds, if any of the present respondents stand cancelled.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Appeal No. 607 of 2003

Decided On: 18.06.2015

The State of Maharashtra Vs. Vasant and Ors.

Hon'ble Judges/Coram:

M.T. Joshi, J.

Citation: 2015 ALLMR (CRI)3649,MANU/MH/2720/2015.

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Bombay HC: How to appreciate prosecution evidence if evidence of complainant is contrary to evidence to injured witness?

 Evidence of Shivdas, the injured witness, when perused, reveals that at the time of incident, he was present with the Complainant and they were talking with reference to vacating the land upon which they had constructed "Chhappar". When the accused arrived, accused No. 1 was armed with iron bar and inflicted head injury to the Complainant by the same. He further stated that he alongwith Rajendra was given kick blows and fist blows and at the time of incident, number of persons gathered on the spot including Janardhan (P.W. 6), Dilip (P.W. 7), one Balu and others. It is material to point out that evidence of Rajendra (P.W. 1) is totally silent on the said aspect of presence of Dilip, Janardhan and Balu as deposed by this witness. {Para 5}

With reference to evidence of Shivdas on the point of assault, when his cross-examination is perused, his evidence appears to be contrary to the evidence of Rajendra, when he has admitted that prior to the incident, relations between himself, the Complainant on one side and the accused were not cordial as they were not on visiting terms, however, according to Rajendra (P.W. 1), the relations were good. Though according to Rajendra, on the day of incident, he was required to visit Nagar for some work and Shivdas was present in the hotel, Shivdas in total contrast to above evidence deposed that on the day of incident, both of them were running hotel upto 08:30 pm to 09:00 pm.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Appeal No. 427 of 2002

Decided On: 22.04.2014

The State of Maharashtra Vs. Shankar Nana Shende

Hon'ble Judges/Coram:

P.N. Deshmukh, J.

Citation: 2014 ALLMR (CRI) 4008, 2015(2) MHLJ (CRI) 717, MANU/MH/2443/2014

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Bombay HC: Under which circumstances, prosecution must examine independent witnesses?

 Learned counsel on behalf of the accused has also submitted that this a fit case to draw adverse inference against dropping of Rajesh PW6 and non-examination of his brother Sanjay Mesta who were independent witnesses and in that regard learned counsel has placed reliance on the case of Bir Singh & Ors. v. The State of U.P. MANU/SC/0082/1977 : AIR 1978 SC 59 wherein the Apex Court has stated that although it is true that it is not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record, this rule will not apply where the evidence of the eyewitnesses suffers from various infirmities and could be relied only when properly corroborated. In this case, there have been two versions given, one supported by the relatives of Ashok PW2 and the other by the persons who were present there, namely, Mahesh PW14, his two brothers and others and in such a situation it was certainly incumbent upon the prosecution to examine the said two witnesses and in the absence of examination this would be a fit case to draw adverse inference against the prosecution for their non-examination. {Para 15}

16. That the injury on Suraj PW1 was accidental is a version given by the accused as well as Madhusudan PW8, though for different reasons. As per the accused that injury was caused when Madhusudan PWS wanted to assault the accused. As per Madhusudan PW8 himself that injury was caused when Suraj PW1 was obstructing the accused from assaulting Ashok PW2, and, therefore it could not have been said to have been intentionally caused to Suraj PWI and on that count the accused could not have been convicted. If the version of Ashok PW2 or for that matter the case of the prosecution could not be accepted thus far, benefit of doubt ought to have been given to the accused as far as die injury to Ashok PW2 was caused.

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 27 of 2007

Decided On: 20.08.2008

Shivaji Gaonkar Vs. State

Hon'ble Judges/Coram:

N.A. Britto, J.

Citation: 2008(4) MHLJ (Crl) 419, 2009 ALLMR (Cri) 359,MANU/MH/1632/2008.

Read full judgment here: Click here.

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