Another grave illegality vitiating the judgment of the High Court is conviction of the appellants under Section 302 read with Section 149 IPC even though appellants have been acquitted of the offence under Section 148 IPC.
28. All 77 accused, vide charge No. 1, were charged to the effect that they were members of the unlawful assembly and in prosecution of the common object of such assembly, to commit the murder of D-1, D-2, D-3, D-4 and D-5, committed the offence of rioting by pouring kerosene and thereby committed an offence punishable under Section 148 IPC vide charge No. 4, all the accused were charged that they committed murder by intentionally causing the death of D-1 to D-5 and thereby committed an offence punishable under Section 302 IPC. The Trial Court held that neither offence under Section 148 IPC nor under Section 302 IPC was established against the accused beyond any reasonable doubt. The High Court affirmed the finding of the Trial Court about the acquittal of the appellants under Section 148 IPC but convicted them for the offence punishable under Section 302 read with Section 149 IPC without their being any charge to this effect.
Section 149 IPC creates constructive liability i.e. a person who is a member of the unlawful assembly is made guilty of the offence committed by another member of the same assembly in the circumstances mentioned in the Section, although he may have had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly. The legal position is also fairly well settled that because of a mere defect in language or in the narration or in form of the charge, the conviction would not be rendered bad if accused has not been affected thereby.
But in a case such as the present one where the appellants have been expressly charged for the offence punishable under Section 148 IPC and have been acquitted there under, they cannot be legally convicted for the offence punishable under Section 302 read with Section 149 IPC. It is so because the offence of rioting must occur when members are charged with murder as the common object of the unlawful assembly.
Section 148 IPC creates liability on persons armed with deadly weapons and is a distinct offence and there is no requirement in law that members of unlawful assembly have also to be charged under Section 148 IPC for legally recording their conviction under Section 302 read with Section 149 IPC. However, where an accused is charged under Section 148 IPC and acquitted, conviction of such accused under Section 302 read with Section 149 IPC could not be legally recorded. We find support from a Four Judge Bench decision of this Court in the case of Mahadev Sharma v. State of Bihar MANU/SC/0078/1965 : (1966) 1 SCR 18
wherein this Court held thus:
...Of course, if a charge had been framed under s.147 or s.148 and that charge had failed against any of the accused then s.149 could not have been used against him. The area which is common to ss.147 and 149 is the substratum on which different degrees of liability are built and there cannot be a conviction with the aid of s.149 when there is no evidence of such substratum.
29. In view of the aforesaid legal position, the appellants having been acquitted under Section 148 IPC by the Trial Court as well as the High Court, they could not have been legally convicted by the High Court under Section 302 read with Section 149 IPC.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 120 of 2008
Decided On: 06.11.2009
Md. Ankoos and Ors. Vs. The Public Prosecutor, High Court of A.P.
Hon'ble Judges/Coram:
D.K. Jain and R.M. Lodha, JJ.
Citation : (2010 )1 SCC 94, MANU/SC/1795/2009.
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