Thursday, 13 September 2018

How to write Judgment if an unlawful assembly commits the offence?

 From the judgment of the Sessions Court, we do not see any clear findings recorded (i) as to the existence of an unlawful assembly, (ii) if it existed, how many (number of the members) were present in the unlawful assembly. It must be remembered that the accusation is that all the 17 Accused were members of the unlawful assembly. There appears to be an accusation of the commission of the offence Under Section 143 Indian Penal Code. There is no finding whether the assembly consisted of 17 members or less (number) and which of the 17 Accused were present (the identity) in the assembly. Nor is there any clear finding regarding the common object of the assembly. Consequentially, there is no finding recorded by the Sessions Court whether an offence of unlawful assembly punishable Under Section 143 was committed by all or some of the Accused. The Trial Court recorded the conviction Under Section 148 Indian Penal Code against 4 Accused. Logically it should follow that the trial court was of the opinion that there was an unlawful assembly. That means more than 5 people participated in the attack. In such a case even assuming for the sake of argument the identity of the Accused (other than the 4 convicts) is not proved beyond reasonable doubt, A-1 and A-5 who were found to have been guilty of the offence Under Section 148 should normally have been found vicariously guilty of the offence of murder along with A-10 and A-12 (provided of course that they are not prejudiced by the improper framing of charges). The record is not very clear whether the Accused were told they were to face a charge of being members of the unlawful assembly, whose common object was to commit murder of the three deceased.

37. Coming to the conviction of A-10 and A-12, the mere statement in the Sessions Court's judgment that two of the Accused were found guilty of offence punishable Under Section 302 of the Indian Penal Code falls short of the requirement of law in a case where more than one person died in the transaction. Equally the other two Accused who are convicted of other offences mentioned earlier are entitled to know the details of the offence for which they are convicted.

Criminal Appeal Nos. 1525 and 1526-1527 of 2009

Decided On: 16.05.2018

 Vinubhai Ranchhodbhai Patel Vs. Rajivbhai Dudabhai Patel and Ors.

Hon'ble Judges/Coram:
Jasti Chelameswar and Sanjay Kishan Kaul, JJ.

Citation:(2018) 7 SCC 743
Read full judgment here: Click here
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