April 18, 2023 In Uncategorized

SUPREME COURT HOLDS RESPONDENT GUILTY OF COMMITTING MURDER IN PROSECUTION OF A COMMON OBJECT OF THE UNLAWFUL ASSEMBLY

A two Judge Bench of the Supreme Court presided by Justice MR Shah and Justice CT Ravikumar passed a Judgment dated 11.04.2023 in Surendra Singh Versus State of Rajasthan and Anr., SLP (Crl.) No.4241 of 2019 and held the Respondent-Accused guilty of committing murder in prosecution of a common object of the unlawful assembly of 5 people on the ground that as per the first part of Section 149 of the Indian Penal Code 1860 (IPC) (Every member of unlawful assembly guilty of offence committed in prosecution of common object) if an offence is committed by any member of an unlawful assembly in prosecution of the common object of the said assembly, every person who, at the time of that offence, is a member of the same assembly, is guilty of that offence.

Facts:

i) A First Information Report (FIR) bearing no. 445/2010 was lodged by the Police Station, Khetri, Rajasthan on 01.12.2010, based on a Complaint filed by one, Surendra Singh (Complainant) which stated that on 28.11.2010, when the Complainant’s younger brother, Narendra Singh (Deceased) was filling water from a hand-pump at around 9.30 a.m, the Accused – Bhupendra Singh, Vijendra Singh Bhawani Singh, Sangeeta and Gulab Kanwar caused lathi blows to the Deceased-Narendra Singh. The Deceased was taken to the hospital, but he had succumbed to his injuries.

ii) The FIR was lodged against all 5 Accused. But the Police filed Charge Sheet only against two of the Accused persons namely Bhupendra Singh and Vijendra Singh for committing offences under Sections 341 IPC (Punishment for wrongful restraint), 323 IPC (Punishment for voluntarily causing hurt), 325 IPC (Punishment for voluntarily causing grievous hurt) read with 34 IPC (Acts done by several persons in furtherance of common intention), 308 IPC read with 34 IPC (Attempt to commit culpable homicide) and 302 IPC (Punishment for murder) before the Ld. District Court, Jhunjhunu, Rajasthan (Trial Court).

iii) During the trial, the Accused-Bhupendra Singh died and three others were arrayed as Accused and were being tried separately. However, the three other Accused were absconding.

iv) Thus, the remaining Accused- Vijendra Singh was tried separately by the Ld. Trial Court and was convicted by the Ld. Trial Court for the offence punishable under Sections 147 IPC (Punishment for rioting), 323 IPC, 302 IPC read with 149 IPC (Every member of unlawful assembly guilty of offence committed in prosecution of common object).

v) Aggrieved by the Trial Court Order, the Accused-Vijendra Singh (Respondent) preferred an Appeal before the High Court of Rajasthan at Jaipur in B. Criminal Appeal No. 818 of 2013.

vi) The High Court partly allowed the Appeal vide Order dated 20.11.2018 and set aside the conviction of the Accused-Vijendra Singh for offence under Section 302 IPC read with Section 149 IPC by observing that no case is made out for conviction for murder in the capacity of a member of an unlawful assembly under Section 149 IPC and hence, the High Court considered the individual act of the Accused of causing the fatal blow on the head of the Deceased by using a lathi and accordingly, convicted the Accused for the offence under Section 323 IPC.

Supreme Court Observations:

Aggrieved by the High Court Order dated 20.11.2018, the Complainant- Surendra Singh filed SLP (Crl.) No.4241 of 2019 before the Supreme Court. The Apex Court passed a Judgment dated 11.04.2023 and observed as follows:

  1. That the Ld. Trial Court convicted the Respondent – Accused for the offence under Section 302 IPC with the aid of Section 149 IPC; however, the same was set aside by the High Court on the ground that the initial Charge Sheet was filed only against two Accused persons, namely, Bhupendra Singh and Vijendra Singh and subsequently, three persons were arrayed as Accused and were being tried separately, hence, Section 149 IPC would not be attracted.
  2. However, the High Court failed to take into consideration the fact that the FIR was lodged against all 5 Accused and that the investigating officer charge sheeted only two persons, as the other three Accused had absconded.
  3. Further, the Hon’ble Supreme Court relied on the case of Bharwad Mepa Dana & Anr. Vs. State of Bombay 1960 (2) SCR 172 on applicability of Section 149 IPC and it was observed that merely because two other persons forming part of the unlawful assembly were not convicted as their identity was not established, the Accused cannot be permitted to say that they are not forming part of the unlawful assembly and they cannot be convicted with the aid of Section 149 IPC. In the said decision it is specifically observed and held that the essential question in a case under Section 147 is whether there was an unlawful assembly as defined under 141, I. P. C., of five or more than five persons. The identity of the persons comprising the assembly is a matter relating to the determination of the guilt of the individual Accused, and even when it is possible to convict less than five persons only, Section 147 still applies, if upon the evidence in the case the Court is able to hold that the person or persons who have been found guilty were members of an assembly of five or more persons, known or unknown, identified or unidentified.
  4. Furthermore, as per first part of Section 149 IPC, if an offence is committed by any member of unlawful assembly in prosecution of the common object of that assembly, every person who, at the time of that offence, is a member of the same assembly, is guilty of that offence.
  5. That in the present case, the Bench observed that as per the medical opinion and the deposition of the Doctor, the death of the Deceased occurred due to injury to the spinal bone of the neck.
  6. That although the Accused Bhupendra Singh had given the vital blow on the Deceased’s head, the Respondent-Accused had also actively participated in commission of the offence, being a part of the unlawful assembly, thus, the Respondent-Accused would also be liable to be convicted for the offence under Section 302 IPC with the aid of Section 149 IPC.

Conclusion:-

Thus, based on the aforesaid observations, the Hon’ble Supreme Court held that the Respondent-Accused was a part of the unlawful assembly and had actually participated in commission of the offence with the common object of killing the Deceased and thus, the Respondent-Accused would be liable for committing murder under Section 302 IPC read with Section 149 IPC. Therefore, the Appeal was allowed and the High Court Order dated 20.11.2018 was set aside.

Roopal Bardia

Associate

The Indian Lawyer

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