What is Impact Of Reduction Of Number Of Convicts Below 5 Pending An Appeal Against Conviction U/Sec 149 IPC Owing To Death Of Co-Convicts?

  The next question to be looked into to appreciate the contentions of the appellant is 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. 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.{Para 12}

14. As stated above, the effect and impact of reduction of the number of convicts pending an appeal owing to the death of co-convicts is bound to be different from the effect and impact of reduction of the number of accused/convicts on account of acquittal.

16. The long and short of the aforesaid discussion is that the mere fact that seven out of the ten convicts died, either during the pendency of Criminal Appeal No. 1510/1992 before the High Court or during the pendency of this appeal, 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.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 965 OF 2018; 

 Gurmail Singh & Anr. VsState of Uttar Pradesh & Anr.

Coram: C.T. RAVIKUMAR; J., SUDHANSHU DHULIA; J.

Dated; October 17, 2022

Author: C.T. RAVIKUMAR, J.

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Supreme Court Judgment on two parts of S 149 of IPC and its relevancy in deciding criminal cases

 Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be called out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of occurrence. The word 'knew' used in the second limb of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first part of the offences committed in prosecution of the common object would also be generally, if not always, within the second part, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and others v. State of Mysore AIR 1956 SC 731).

Supreme Court of India

Chanda And Ors vs State Of U.P. & Anr on 29 April, 2004

Author: J Arijit Pasayat

Bench: Doraiswamy Raju, Arijit Pasayat.

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Whether court can convict accused with the aid of S 34 of IPC if the court has framed charge against accused U/S 149 of IPC?

 In fact, the law on this point has continuously been delved into and reiterated by this Court from time to time. A three Judge

Bench of this Court in Karnail Singh v. State of Punjab AIR 1954 SC 204., held that:

“8. It is true that there is substantial difference between the two

sections but as observed by Lord Sumner in Barendra Kumar

Ghosh v. Emperor I.L.R. 52 Cal. 197, they also to some extent

overlap and it is a question to be determined on the facts of each

case whether the charge under section 149 overlaps the ground

covered by section 34. If the common object which is the subject matter of the charge under section 149 does not necessarily

involve a common intention, then the substitution of section 34 for section 149 might result in prejudice to the accused and ought not therefore to be permitted.

But if the facts to be proved and the evidence to be

adduced with reference to the charge under section 149

would be the same if the charge were under section 34,

then the failure to charge the accused under section 34

could not result in any prejudice and in such cases the

substitution of section 34 for section 149 must be held to

be a formal matter.”

(emphasis supplied)

20. The above extracted position of law was further concretised in

Willie (William) Slaney v. State of MP  AIR 1956 SC 116, ¶ 49. and by the majority in Chittarmal v. State of Rajasthan (2003) 2 SCC 266, ¶ 14.. The permissibility of convicting an accused individually under a simplicitor provision after group conviction

with the aid of Section 149 of IPC fails, was further explored in

Atmaram Zingaraji v. State of Maharashtra (1997) 7 SCC 41., wherein this Court

held that:

“4. The next question that falls for our determination is whether,

after having affirmed the acquittal of all others, the High Court

could convict the appellant under Section 302, I.P.C. (simpliciter).

The charges framed against the accused (quoted earlier) and the

evidence adduced by the prosecution to bring them home clearly

indicate that according to its case, the nine persons arraigned

before the trial Court and,  none others, either named or

unnamed (totalling minimum five or more persons) formed

the unlawful assembly. Consequent upon the acquittal of the other

eight the appellant could not be convicted with the aid of Section

149, I.P.C., more particularly, in view of the concurrent findings of

the learned Courts below that the other eight persons were not in

any way involved with the offences in question.

5. The same principle will apply when persons are tried with the

aid of Section 34, I.P.C. In the case of Krishna v. State of

Maharashtra [1964]1SCR678 , a four Judge Bench of this Court

has laid down that when four accused persons are tried on a

specific accusation that only they committed a murder in

furtherance of their common intention and three of them are

acquitted, the fourth accused cannot be convicted with the aid of

Section 34, I.P.C. for the effect of law would be that those who

were with him did not conjointly act with the fourth accused in committing the murder.

6. In either of the above situations therefore the sole convict can

be convicted under Section 302, I. P. C. (simpliciter) only on proof of the fact that his individual act caused the death of the victim. To put it differently, he would be liable for his own act only.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 38 of 2011

Rohtas Vs Vs  State of Haryana 

Author: Surya Kant, J:

Dated: 10.12.2020

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