S 149 of IPC ,Two part explainer{ S 190 of BNS}

 Section 149 IPC and the Chanda judgment become very easy if you keep three words in mind:

group, object, knowledge.

Below is a structured explanation plus a ready‑made interview answer.

1. Core idea of Section 149 IPC  {S 190 of BNS}

• Section 149 creates constructive / vicarious liability for members of an unlawful assembly (5 or more persons).

• If one member commits an offence:

  • either in prosecution of the common object,

  • or an offence which the members knew was likely to be committed in prosecution of that object,
    then every member of that assembly is guilty of that offence.

• Emphasis is on common object, not on individual acts or prior “meeting of minds” as in Section 34 IPC.​

Print Page

What are parameters for deciding bail application U/S 302 or 307 r/w S 149 of IPC If said offence is committed by unlawful assembly?

 Bail in Unlawful Assembly Cases: When No Specific Act is Attributed to the Accused

Critical Supreme Court Principle: Mere Presence ≠ Guilt

The Supreme Court of India has recently reaffirmed a fundamental principle: mere presence at the scene of a crime or in an unlawful assembly does not automatically render a person criminally liable under Sections 302 or 307 of the IPC, even when invoking Section 149 (vicarious liability). This principle has direct and significant implications for bail considerations in unlawful assembly cases.​

The Landmark 7-Factor Test for Unlawful Assembly Membership (2025)

Print Page

Supreme Court: Whether accused can be held guilty for murder if common object of the assembly is not discernible?

 In the case of Sukhbir Singh (supra) it was held:-

“14. The prosecution in the instant case could not

specifically refer to any of the objects for which

the accused are alleged to have formed the

assembly. It appears, from the circumstances of

the case, that after altercation over the splashing of

mud on his person and receiving two slaps on his

face from the complainant party, Sukhbir Singh

declared to teach the complainant party, a lesson

and went home. Immediately thereafter he along

with others came on the spot and as held by the

High Court wanted to remove the obstruction

caused in the flow of water. As the common object

of the assembly is not discernible, it can, at the

most, be held that Sukhbir Singh intended to cause

the fatal blow to the deceased and the other

accused accompanied him for the purpose of

removing the obstructions or at the most for

teaching a lesson to Lachhman and others. At no

point of time any of the accused persons

threatened or otherwise reflected their intention to

commit the murder of the deceased. Merely

because the other accused persons were

accompanying him when the fatal blows were

caused by Sukhbir Singh to the deceased, cannot

prove the existence of the common object

specifically in the absence of any evidence of the

prosecution in that behalf. The members of the

unlawful assembly can be held liable under

Section 149 IPC if it is shown that they knew

before hand that the offence actually committed

was likely to be committed in prosecution of the

common object. It is true that the common object

does not require prior concern and a common

meeting of mind before the attack. It can develop

even on spot but the sharing of such an object by

all the accused must be shown to be in existence at

any time before the actual occurrence.”

[Non- Reportable ]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1431 of 2013

DILIP SHAW @ SANATAN & ANR. Vs  THE STATE OF WEST BENGAL AND ORS. 

Author: ANIRUDDHA BOSE, J.

Dated: March 02, 2020.

Print Page

Supreme Court: Even the accused who had transported the armed assailants to the scene are liable for prosecution of offences committed in prosecution of common object of that assembly

 Section 149 of the Indian Penal Code unequivocally provides that every member of an unlawful assembly is guilty of an offence committed in prosecution of the common object or of one which such members knew to be likely committed in furtherance thereof. In Masalti (supra) (para 17), this Court clarified that it is not necessary for each member of the unlawful assembly to have committed a specific overt act. Once participation and sharing of the common object are proved, every member becomes vicariously liable for offences committed in prosecution of that object. {Para 42}

43. In the present case, the evidence conclusively establishes that all three Appellants were members of an unlawful assembly that carried out a premeditated and violent attack resulting in the death of the deceased and grievous injuries to PW-7 and PW-9. The role of Appellant (Accused No. 6) in inflicting serious injuries upon PW-7 demonstrates his direct involvement and awareness of the collective design. The Appellant No. 1 and 2 (Accused No. 3 and 4), who transported the armed assailants to the scene, played an equally crucial role by facilitating the attack and ensuring its execution in furtherance of the common object.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1755 of 2011 and 150-151 of 2013 

Decided On: 29.10.2025

Haribhau and Ors. Vs. The State of Maharashtra 

Hon'ble Judges/Coram:

Prashant Kumar Mishra and V.M. Pancholi, JJ.

Author: V.M. Pancholi, J.

Citation: 2025 INSC 1266, MANU/SC/1463/2025.

Print Page

Supreme Court: What are considerations for grant of bail in case of offence by unlawful assembly?

In this backdrop, clearly, the approach adopted by the High Court at the stage of considering bail recording that the prosecution was required to indicate the individual role of the Accused in the incident, and that failure to do so, entitled the Respondents-Accused to bail, is erroneous on the face of record. In a case where the offence is committed by an unlawful assembly, each member of the assembly is equally responsible for the acts committed in furtherance of the unlawful object.  {Para 27}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1100 of 2026

Decided On: 23.02.2026

Shobha Namdev Sonavane Vs. Samadhan Bajirao Sonvane and Ors. 

Hon'ble Judges/Coram:

Vikram Nath and Sandeep Mehta, JJ.

Author: Sandeep Mehta, J.

Citation: 2026 INSC 181,MANU/SC/0176/2026

Print Page

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.

Print Page

What are basic principles laid down in the cases of Masalti, Lalji, Dan Singh?

 In Indian criminal law, the cases of Masalti, Lalji, and Dan Singh establish core principles regarding unlawful assembly and vicarious liability under Section 149 of the Indian Penal Code (IPC).These principles generally focus on how to hold members of a large group accountable for a crime even if their specific individual acts cannot be proven. 

1. Masalti v. State of Uttar Pradesh (1964)

This landmark judgment addresses the appreciation of evidence in cases involving a large number of accused and victims. 

Print Page

When Presence Becomes Culpability: Supreme Court Redefines the Line Between Bystander and Criminal in Mob Violence Cases

 Landmark 2025 Judgment Sets New Standards for Section 149 IPC Convictions

In a landmark judgment that promises to reshape criminal prosecutions involving mob violence across India, the Supreme Court in Zainul and Others v. State of Bihar (2025) has delivered authoritative guidance on one of the most contentious questions in Indian criminal jurisprudence: When does mere presence at a crime scene transform an innocent bystander into a culpable member of an unlawful assembly?

Read full judgment here: Click here.

Print Page

Video of the Supreme Court judgment explaining the distinction between Unlawful Assembly and Innocent Bystanders

 This video is produced and presented for educational and informational purposes only. The content is based on the Supreme Court of India judgment,

  IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1187 of 2014

Decided On: 07.10.2025

Zainul Vs. The State of Bihar

Author: J.B. Pardiwala, J.

 Citation: 2025 INSC 1192, MANU/SC/1387/2025.

Read full judgment here: Click here.

Section 149 criminal liability is not automatic for mere presence; it requires proof of shared intent and participation. This ruling refines the law around vicarious liability in mob violence, guiding courts, advocates, and law enforcement for fairer trials and justice.

Disclaimer

The video and accompanying materials do not constitute legal advice or opinion and should not be relied upon as a substitute for professional legal counsel. While efforts have been made to ensure accuracy, the creators and host disclaim any liability for errors or omissions.

Viewers are encouraged to refer to the original Supreme Court judgment and consult qualified legal experts for specific cases or issues. Use of this video is at the viewer's discretion, and the creators assume no responsibility for outcomes based on this information.

Print Page

Deciphering Section 149 IPC: Supreme Court’s “Bystander Vs. Member” Ruling Redefines Constructive Liability

a. Innocent Bystander v. Member of an Unlawful Assembly

53. Once the two broad essentials of Section 149 are fulfilled, i.e., (1) an offence is committed by any member of an unlawful assembly in prosecution of the common object, or (2) if the members of the assembly knew that the said offence is likely to be committed in prosecution of the said common object, every person who at the at the time of commission of the offence was a member of the assembly is to be held guilty of that offence.

54. At the same time, mere presence at the scene does not ipso facto render a person a member of the unlawful assembly, unless it is established that such an Accused also shared its common object. A mere bystander, to whom no specific role is attributed, would not fall within the ambit of Section 149 of the Indian Penal Code. The prosecution has to establish, through reasonably direct or indirect circumstances, that the Accused persons shared a common object of the unlawful assembly. The test to determine whether a person is a passive onlooker or an innocent bystander is the same as that applied to ascertain the existence of a common object. The existence of a common object is to be inferred from the circumstances of each case, such as:

a. the time and place at which the assembly was formed;

b. the conduct and behaviour of its members at or near the scene of the offence;

c. the collective conduct of the assembly, as distinct from that of individual members;

d. the motive underlying the crime;

e. the manner in which the occurrence unfolded;

f. the nature of the weapons carried and used;

g. the nature, extent, and number of the injuries inflicted, and other relevant considerations.

i. Rule of Prudence in Convicting Members of an Unlawful Assembly

55. This Court, as a matter of caution, has enunciated parameters to safeguard innocent spectators or passive onlookers from being convicted merely on account of their presence. This cautionary rule, however, does not dilute the doctrine of constructive liability, under which proof of an overt act by each individual is not indispensable. Where the presence of a large number of persons is established and many are implicated, prudence mandates strict adherence to this Rule of caution.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1187 of 2014

Decided On: 07.10.2025

Zainul Vs. The State of Bihar

Author: J.B. Pardiwala, J

 Citation: 2025 INSC 1192, MANU/SC/1387/2025.

Print Page

What is basic concept of constructive liability and vicarious liability as provisions of indian penal code?

 The Indian Penal Code incorporates two important liability principles that hold individuals accountable for crimes committed by others: constructive liability and vicarious liability. While these concepts are closely related and often overlap, they operate under distinct legal frameworks.

Constructive Liability Under IPC

Constructive liability is the principle under which a person may be held liable for the consequences of another person's conduct, even if they did not actively participate in the act. This form of liability is based on the premise that their involvement in the criminal act, whether tacit or open, indirectly contributed to the outcome.

Print Page

Whether the court can convict accused U/S 302 R/W S 34 of IPC if he was charged U/S 302 R/W S 149 of IPC?

 Be that as it may, the determination of common intention or common object should primarily be within the domain of the trial courts, and at the most the high courts. It should not be the role of this Court to directly adjudicate issues of common intention and common object. This Court has, in a catena of decisions, elaborated on the differences between Section 149 and Section 34, Indian Penal Code; the overlapping nature of Section 149 and Section 34, Indian Penal Code; and when can the offence Under Section 302 read with Section 149, Indian Penal Code be changed to Section 302 read with Section 34, Indian Penal Code. Such decisions do provide suitable guidance for the lower courts to draw from, to reach their conclusions. {Para 21}

22. In this connection, we may refer to paragraph 14 of the decision of this Court in Chittarmal v. State of Rajasthan   MANU/SC/0008/2003 : 2003:INSC:5 : (2003) 2 SCC 266. The relevant excerpt from such decision reads:

14. It is well settled by a catena of decisions that Section 34 as well as Section 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both the Sections deal with combinations of persons who become punishable as sharers in an offence. Thus, they have a certain resemblance and may to some extent overlap. But a clear distinction is made out between common intention and common object in that common intention denotes action concert and necessarily postulates the existence of a prearranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or preconcert. Though there is a substantial difference between the two sections, 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. Thus, if several persons numbering five or more, do an act and intend to do it, both Section 34 and Section 149 may apply. If the common object 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 it does involve a common intention then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non-applicability of Section 149 is, therefore, no bar in convicting the Appellants Under Section 302 read with Section 34 Indian Penal Code, if the evidence discloses commission of an offence in furtherance of the common intention of them all. 

23. In paragraph 17 of the decision of this Court in Chandra Pratap Singh v. State of M.P.   MANU/SC/1100/2023 : 2023:INSC:887 : (2023) 10 SCC 181, while dealing with conversion of charge from Section 302 read with Section 149, Indian Penal Code to Section 302 read with Section 34 thereof, the above passage has been quoted with approval.

24. It would be relevant at this juncture to consider Section 464 of the Code of Criminal Procedure. On its plain terms, Sub-section (1) of Section 464 clearly indicates that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in an appeal, confirmation or revision, a claim of "failure of justice" has been substantiated.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1389 of 2012

Decided On: 25.09.2024

Baljinder Singh and Ors. Vs. State of Punjab

Hon'ble Judges/Coram:

Dipankar Datta and Augustine George Masih, JJ.

Author: Dipankar Datta, J.

Citation: MANU/SC/1063/2024.

Read full Judgment here: Click here.

Print Page

Whether convict can challenge conviction on the ground of conversion of charge if he fails to prove Failure Of Justice?

 In paragraph 17 of the decision of this Court in Chandra Pratap Singh v. State of M.P.   MANU/SC/1100/2023 : 2023:INSC:887 : (2023) 10 SCC 181, while dealing with conversion of charge from Section 302 read with Section 149, Indian Penal Code to Section 302 read with Section 34 thereof, the above passage has been quoted with approval. {Para 23}

24. It would be relevant at this juncture to consider Section 464 of the Code of Criminal Procedure. On its plain terms, Sub-section (1) of Section 464 clearly indicates that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in an appeal, confirmation or revision, a claim of "failure of justice" has been substantiated.

25. Law is well-settled that in order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the Accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. Reference in this connection may be made to the decision in Dalbir Singh v. State of Uttar Pradesh   MANU/SC/0320/2004 : 2004:INSC:243 : (2004) 5 SCC 334.

26. Also, it is beyond any cavil of doubt that the burden to show that in fact a failure of justice has been occasioned is on the Accused. The decision in State of Uttar Pradesh v. Paras Nath Singh   MANU/SC/0973/2009 : 2009:INSC:669 : (2009) 6 SCC 372 can profitably be referred to in this regard.

27. We have no hesitation to hold that based on the above parameters, the Appellants have fairly and squarely failed in their pursuit to demonstrate any failure of justice, which would impel us to exercise power of the nature contemplated in Sub-section (2) of Section 464, Code of Criminal Procedure. We, therefore, see no reason to uphold the contention advanced on behalf of the Appellants to the contrary.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1389 of 2012

Decided On: 25.09.2024

Baljinder Singh and Ors. Vs. State of Punjab

Hon'ble Judges/Coram:

Dipankar Datta and Augustine George Masih, JJ.

Author: Dipankar Datta, J.

Citation: MANU/SC/1063/2024.

Read full Judgment here: Click here.

Print Page

Supreme Court: Under which circumstances prosecution case can not be dismissed for non examination of independent witnesses

 It is also settled law that examination of independent witness is not an indispensable requisite if the testimonies of other witnesses are deemed trustworthy and reliable. Non-examination of any independent witness by the prosecution will not go to the root of the matter affecting the decision of the court, unless other witnesses' testimonies and evidences are scant to establish the guilt of the Accused. {Para 29}

24.3. In Rizwan Khan v. State of Chhattisgarh   MANU/SC/0680/2020 : 2020:INSC:543 : (2020) 9 SCC 627, after referring to the decision of this Court in State of H.P. v. Pardeep Kumar   MANU/SC/0213/2018 : 2018:INSC:166 : (2018) 13 SCC 808, it is observed and held by this Court that the examination of the independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case.

(emphasis supplied)

30. It has been rightly pointed out by the Trial Court that the prosecution's case is not that people from the surrounding locality gathered at the time of the incident. In the light of the aforenoted decisions of this Court and upon careful examination of the testimonies of P.W. 3, P.W. 4, and P.W. 5, along with the relevant other evidence on record, the prosecution's case cannot be dismissed solely on the ground of the absence of independent witness.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1389 of 2012

Decided On: 25.09.2024

Baljinder Singh and Ors. Vs. State of Punjab

Hon'ble Judges/Coram:

Dipankar Datta and Augustine George Masih, JJ.

Author: Dipankar Datta, J.

Citation: MANU/SC/1063/2024.

Print Page

Understanding Section 149 IPC: Supreme Court's Interpretation in Chanda vs State of U.P. dated 29 April, 2004

 The Supreme Court of India, in its judgment in Chanda And Ors vs State Of U.P. & Anr (2004), provided a comprehensive interpretation of Section 149 of the Indian Penal Code (IPC). This decision offers valuable insights into the application of this section, which deals with the liability of members of an unlawful assembly.

Key Points of the Judgment

1. Two Parts of Section 149 IPC

   - First Part: The offence must be committed in direct prosecution of the common object of the unlawful assembly.

   - Second Part: The offence must be one that the members knew was likely to be committed in prosecution of the common object.

Print Page

Questions and answers on law (Part 52)

 Q 1:- Whether victim has right to appeal against inadequate sentence to accused?

Ans:- Proviso to Section 372 ofCRPC (vide Act 5 of 2009) does not envisage right of appeal against inadequate sentence.

Q 2:- What is meant by Rule of law?

Ans:- Rule of law is the principle  that all people and institutions are subject to and accountable to law that is fairly applied and enforced; the principle of government by law.

Q 3:- What is retracted confession?

Print Page

Whether court can convict accused with the aid of S 34 of IPC in place of S 149 of IPC even though no charge was framed U/S 34 of IPC?

Effect of Failure to frame proper charges

39. In State of Andhra Pradesh v. Thakkidiram Reddy and Ors. MANU/SC/0490/1998 : (1998) 6 SCC 554, this Court considered the issue of failure to frame the proper charges. observing as under:

10. Sub-section (1) of Section 464 of the Code of criminal Procedure 1973 ('the Code', for short) expressly provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. Sub-section (2) of the said section lays down the procedure that the court of appeal, confirmation or revision has to follow in case it is of the opinion that a failure of justice has in fact been occasioned. The other section relevant for our purposes is Section 465 of the Code; and it lays down that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the proceedings, unless in the opinion of that court, a failure of justice has in fact been occasioned. It further provides, inter alia, that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.

The Court further held that in judging a question of prejudice, as of guilt, the court must look to the substance of the matter and not to technicalities, and its main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. In the said case this Court ultimately came to the conclusion that despite the defect in the framing of charges, as no prejudice had been caused to the accused, no interference was required.

40. A Constitution Bench of this Court in Willie (William) Slaney v. State of Madhya Pradesh MANU/SC/0038/1955 : AIR 1956 SC 116, considered the issue of failure to frame charges properly and the conviction of an accused for the offences for which he has not been charged and reached the conclusion as under:

86. ... In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out....

87. ... If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lesser degree, it will be an irregularity and prejudice by way of failure of justice will have to be established.

41. This Court in Gurpreet Singh v. State of Punjab MANU/SC/2515/2005 : (2005) 12 SCC 615, referred to and relied upon its earlier judgments in Willie (William) Slaney (supra) and Thakkidiram Reddy (supra), and held that unless there is a failure of justice and thereby the cause of the accused has been prejudiced, no interference is required if the conviction can be upheld on the evidence led against the accused. The Court should not interfere unless it is established that the accused was in any way prejudiced due to the errors and omissions in framing the charges against him.

A similar view has been re-iterated by this Court in Ramji Singh v. State of Bihar MANU/SC/0632/2001 : (2001) 9 SCC 528; and Sanichar Sahni v. State of Bihar MANU/SC/0888/2009 : (2009) 7 SCC 198.

42. There is no bar in law on conviction of the accused with the aid of Section 34 IPC in place of Section 149 IPC if there is evidence on record to show that such accused shared a common intention to commit the crime and no apparent injustice or prejudice is shown to have been caused by application of Section 34 IPC in place of Section 149 IPC. The absence of a charge under one or the other or the various heads of criminal liability for the offence cannot be said to be by itself prejudicial to the accused, and before a conviction for the substantive offence without a charge can be set aside, prejudice will have to be made out. Such a legal position is bound to be held good in view of the provisions of Sections 215, 216, 218, 221 and 464 of Code of criminal Procedure, 1973. (Vide: Dalip Singh and Ors. v. State of Punjab MANU/SC/0031/1953 : AIR 1953 SC 364; Malhu Yadav and Ors. v. State of Bihar MANU/SC/0393/2002 : (2002) 5 SCC 724; Dhaneswar Mahakud and Ors. v. State of Orissa (2009) 9 SCC 307; and Annareddy Sambasiva Reddy and Ors. v. State of Andhra Pradesh MANU/SC/0640/2009 : AIR 2009 SC 2661).

43. Thus, the law on the issue can be summarised to the effect that unless the accused is able to establish that the defect(s) in framing the charge(s) has caused real prejudice to him; that he was not informed as to what was the real case against him; or that he could not defend himself properly, no interference is required on mere technicalities.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1243 of 2007

Decided On: 14.09.2010

 Abdul Sayeed  Vs.    State of Madhya Pradesh

Hon'ble Judges/Coram:

P. Sathasivam and B.S. Chauhan, JJ.

Citation: MANU/SC/0702/2010,(2010) 10 SCC 259

Print Page

Whether court can convict accused of an offence, U/S 302 read with S 149 of IPC if he was acquitted U/S 302 read with 148 of IPC?

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.

Print Page

Whether court can convict accused with the aid of S 149 of IPC even if it has not framed specific charge U/S 149 of IPC against accused?

 A careful reading of charge No. 4 and charge No. 5 leaves no manner of doubt, since the transaction mentioned in charge No. 1 has been made integral part thereof, that all the necessary ingredients of Section 149 IPC are implicit therein except mentioning of Section 149 IPC specifically. The particulars stated in charge No. 4 and 5 are reasonably sufficient to give the appellants adequate notice of Section 149 IPC although not specifically mentioned.

Is non- mentioning of Section 149 in charge No. 4 and charge No. 5 a fundamental defect of an incurable illegality that may warrant setting aside the conviction and sentence of the appellants ? We do not think so. Non-framing of a charge under Section 149 IPC, on the face of the charges framed against the appellants would not vitiate their conviction; more so when the accused have failed to show any prejudice in this regard. The present case is a case where there is mere omission to mention Section 149 in charge No. 4 and 5 which at the highest may be considered as an irregularity and since the appellants have failed to show any prejudice, their conviction and sentence is not at all affected. Tenor of cross-examination of PW-1 and PW-3 by the defence also rules out any prejudice to them.

The offence, in the established facts and circumstances of the case, under Section 302 read with Section 149 IPC is implicit and applying the dictum laid down by the Constitution Bench of this Court in Willie (William) Slaney, the omission to mention Section 149 IPC specifically in the charge No. 4 and 5 cannot affect their conviction. In no way their conviction is rendered bad as the appellants had assembled together armed with axes and eathapululu(sickle) and were parties to the assault on D-1 and D-2 and others. In a situation such as this it was not obligatory upon the prosecution to prove which specific overt act was done by which of the accused.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 408 of 2007

Decided On: 21.04.2009

 Anna Reddy Sambasiva Reddy  Vs.  State of Andhra Pradesh

Hon'ble Judges/Coram:

D.K. Jain and R.M. Lodha, JJ.

Citation: MANU/SC/0640/2009,(2009) 12 SCC 546, AIR 2009 SC 2661.

R.M. Lodha, J.

Print Page

Whether accused charged under S 302 of IPC read with S 149 of IPC can be convicted under S 302 of IPC read with S 34 of IPC?

The Learned Senior Counsel for the appellants further urged that Murli had given only one blow and there could not be an intention of committing murder. It has come in the evidence of Dr. Vinod Kumar Dhingra (PW-10) that besides the incised wounds, the deceased also suffered the fracture. What was tried to be argued by the Learned Senior counsel was that Dr. Vinod Kumar Dhingra (PW-10), in his evidence, had stated that the deceased had died on account of asphyxia due to complete incised injury to trachea. The Learned Senior Counsel tried to argued that if this alone was the injury resulting in death, then some advantage should be given to Murli who was merely handling a Lathi. The accused persons, as per the charges, were charged with the offence under Section 302 substantively. In addition to that, all the accused were also charged with the aid of Section 149 IPC. It is obvious that both the appellants had specifically taken part in the assault, their presence was established, their overt acts were also established. It was further established that while Heera had given the blows with the aid of a sharp edged weapon, Murli had assaulted the deceased with Lathi on the head. In that view, both the accused can be convicted. The High Court in the appellate judgment, however, has not discussed any of these aspects and has merely chosen to dismiss the appeal and thereby confirming the conviction ordered by the Trial Court with the aid of Section 149 IPC. That undoubtedly was incorrect. The High Court ought to have given a specific finding. However, the fact remains that these two appellants were found to have inflicted the injuries with sharp edged weapon, as well as, Lathi. They have also been individually charged with the offence under Section 302 IPC. In that view, they were bound to be convicted for the offence under Section 302 read with Section 34 IPC. They came together on the spot, they also gave abuses to the deceased and thereafter, acted along with each other. Therefore, we have no hesitation in upholding the conviction, but not with the aid of Section 149 IPC, but with the aid of Section 34. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1011 of 2005

Decided On: 18.08.2009

 Murli  Vs.  State of Rajasthan

Hon'ble Judges/Coram:

V.S. Sirpurkar and Cyriac Joseph, JJ.

Citation : (2009 )9SCC 417,MANU/SC/1470/2009

Print Page