Whether Section 149 IPC applies ? “47. … It is well settled that once a membership of an unlawful assembly is established it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. In other words, mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed.”

Crl. Appeal Nos. 1709-1710 of 2019 (@ SLP [Crl.]Nos.2497-2498 of 2019)
The State of Madhya Pradesh vs. Killu @ Kailash & Ors.
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1709-1710 OF 2019
(Arising out of Special Leave Petition (Crl.)Nos.2497-2498 of 2019)
STATE OF MADHYA PRADESH …Appellant
VERSUS
KILLU @ KAILASH AND ORS. …Respondents
J U D G M E N T
Uday Umesh Lalit, J.

  1. Leave granted.
  2. These Appeals question the judgment and order dated 29.06.2018
    passed by the High Court of Madhya Pradesh at Jabalpur in Criminal
    Appeal Nos.2676 of 2008 and 158 of 2009.
  3. The basic facts as stated in the judgment under appeal are as
    under:-
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    “3. Prosecution story, in brief is that,
    accused/appellant No.4 Khushiram in Cr. Appeal
    No.2678 of 2008, who is uncle [mousia] of the son of
    the deceased, had some enmity with Balaprasad
    Pathak [since deceased]. He along with other accused
    persons entered in the house of Balaprasad Pathak in
    the mid night [2 O’ clock] of 23.05.2005. Deceased
    was sleeping with his family members.
    Accused/appellants [in Cr.Appeal No.2678/2008]
    namely; Khushiram and Himmu @ Hemchand were
    armed with axe, appellant Devendra was armed with
    Ballam and other two accused namely Killu @
    Kailash and Kailash Nayak were armed with lathi.
    Two accused persons namely; Khushiram and Himmu
    @ Hemchand [appellants No.2 and 4 in Cr. Appeal
    No.2676/2008] inflicted injuries by axe on the person
    of deceased. Allegation against other accused persons
    is of exhortation. Deceased died on the spot. Report
    of the incident was lodged by (PW-5) Rameshwar
    Pathak. Police conducted investigation and filed
    charge-sheet. During trial, appellants abjured their
    guilt and pleaded innocence. …”
  4. In support of its case, the prosecution relied upon the testimony of
    PW3-Prabha Rani, wife of the deceased, PW4-Devendra Kumar, son of the
    deceased and PW5-Rameshwar Pathak, a relative of the deceased, who had
    lodged the First Information Report (‘the FIR’, for short). It was narrated
    in the FIR that after having received information about the assault, the
    informant had gone to the house of the deceased where PW3 narrated the
    incident to him, based on which the reporting was made by the informant.
    The medical evidence was unfolded through the testimony of PW2-Dr.
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    R.K. Bhardwaj, who had conducted the post-mortem. He had found
    following injuries on the person of the deceased:-
    “(i) Incised wound over left anterior part of scalp
    4”x1/2” underlaying bone and brain matter cut
    inhacranial cavily pilled with blood.
    (ii) Incised wound 5” x 1” x 2 1/2” uppermost part
    of chest and adjoining anterior part of neck
    slightly left side obliquely placed undergone and
    blood vessels cut.”
    According to him, the injuries were ante-mortem and the deceased
    had died as a result of those injuries.
  5. In due course, five accused were tried in connection with the
    murder of said Balaprasad Pathak for the offence punishable under Section
    302 read with Section 149 IPC in Sessions Trial No.173 of 2005 before the
    First Additional Sessions Judge, Damoh, Madhya Pradesh. After
    considering the evidence on record, the Trial Court concluded that all the
    five accused were members of an unlawful assembly and had entered the
    house of the deceased on the fateful night with the common object of
    causing death of the deceased and as such, they were guilty of the offence
    punishable under Section 302 read with Section 149 IPC. Holding them
    guilty of the aforesaid offence, by its judgment dated 19.12.2001, the Trial
    Court sentenced them to suffer life imprisonment and to pay fine in the sum
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    of Rs.500/- each, in default whereof, each of the convicts was to undergo
    further rigorous imprisonment of three months. The view so taken by the
    Trial Court was challenged by way of Criminal Appeal No.2676 of 2008 by
    four accused while Criminal Appeal No.158 of 2009 was filed by accused
    Kailash Nayak.
  6. Insofar as accused Himmu @ Hemchand and Khushiram, who were
    armed with sharp cutting weapons, the High Court found as under:-
    “16. Appellants No.2 and 4 namely Himmu @
    Hemchand and Khushiram were armed with axe, i.e.
    deadly weapons. They inflicted blows on the vital
    part of deceased as a result of which, deceased died
    on the spot. Evidence of causing injury by axe is
    against the appellants Himmu @ Hemchand and
    Khushiram. Hence, in our opinion, the Trial Court
    has rightly held the appellants guilty for commission
    of offence of murder. Other three accused persons
    namely; Killy @ Kailash and Devendra (appellants
    No. 1 and 3 in Cr. A No. 2676/2008) and appellant
    Kailash Nayak (appellant in Cr.A.No. 158/2009) have
    been convicted with the aid of Section 149 of IPC.
    Allegation against them is that they entered in the
    house and they were armed with lathis and Ballam.
    From the evidence, this fact has also been proved that
    deceased was facing trial of Section 302 of IPC
    because he had killed one Rammilan Pathak.”
  7. The High Court further found that the other three accused were
    stated to be armed with lathis and Ballam but there were no injuries which
    could be associated with lathis and Ballam. The High Court, therefore,
    gave benefit to said three accused as under:-
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    “21.From the aforesaid quoted judgment, the
    principle of law is that “the member of unlawful
    assembly may have committed for the offence caused
    by another accused, if he has knowledge about the act
    committed by the main accused”. In the present case,
    evidence is that the accused entered the house of
    deceased and thereafter, two accused had inflicted
    blow by axe. The other accused persons did not give
    any blow on the deceased. It is alleged that they were
    present on the spot. There was previous enmity
    between the accused persons and the deceased, he was
    also facing criminal trial. Hence, it cannot be ruled
    out that other three persons, who had not inflicted any
    injury may have been named along with the other
    accused persons.
  8. Looking to the evidence on record, in our
    opinion, the conviction of three appellants namely;
    Killu @ Kailash, Devendra and Kailash Nayak, who
    were armed with lathis and Ballam and did not inflict
    any blow with the aid of Section 149 of IPC, is not
    proper. There is lack of sufficient evidence to prove
    them guilty for commission of offence under Section
    149 of IPC beyond reasonable doubt. Hence, the
    appeal filed by appellant Kailash Nayak (Cr. Appeal
    No. 158/2009) is hereby allowed.
  9. Cr. Appeal No.2676/2008, filed by four accused/
    appellants is partly allowed. Appeal filed by
    appellants No. 2 and 4 namely; Himmu @ Hemchand
    and Khushiram is hereby dismissed. They are
    convicted for commission of offence punishable under
    Section 302 of IPC and awarded a sentence of life.
    Appellant No.2 Himmu @ Hemchand is on bail. His
    bail bonds are hereby cancelled. He is directed to
    surrender before the Trial Court for facing remaining
    jail sentence.
  10. Appeal filed by the appellants No.1 and 3
    namely; Killu @ Kailash and Devendra [Cr.Appeal
    No.2676/2008] is hereby allowed. They are acquitted
    from the charge of Section 302/149 of IPC. The
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    judgment passed by the trial Court in regard to
    appellants No.1 and 3 namely; Killu @ Kailash and
    Devendra, is hereby set aside. Appellants Killu @
    Kailash, Devendra and Kailash Nayak, are on bail,
    their bail bonds are hereby discharged.”
  11. The State, being aggrieved by the order of acquittal of accused
    Killu @ Kailash, Devendra and Kailash Nayak, has preferred the instant
    appeals. We heard Mr. Varun K. Chopra, Deputy Advocate General
    (Madhya Pradesh), in support of the Appeal and Mr. S.K. Shrivastava and
    Mr. R.R. Rajesh, learned Advocates who appeared for three acquitted
    accused.
  12. Since the instant case depends upon the extent and application of
    the principle of vicarious liability under Section 149 of the IPC, at the
    outset, we may consider the leading case of Masalti vs. State of U.P.1
    The
    submission of the appellants therein was that mere presence in an assembly
    would not make a person member of an unlawful assembly unless it was
    shown that he had done something or omitted to do something which
    would make him a member of unlawful assembly. Reliance was placed by
    said appellants on the earlier judgment of this Court in Baladin vs. State
    of Uttar Pradesh2
    . The issue was dealt with as under:-
    “… … The observation of which Mr. Sawhney relies,
    prima facie, does seem to support his contention; but,
    1 (1964)8 SCR 133
    2 AIR 1956 SC 181
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    with respect, we ought to add that the said observation
    cannot be read as laying down a general proposition
    of law that unless an overt act is proved against a
    person who is alleged to be a member of an unlawful
    assembly, it cannot be said that he is a member of
    such an unlawful assembly. In appreciating the effect
    of the relevant observation on which Mr. Sawhney has
    built his argument, we must bear in mind the facts
    which were found in that case. It appears that in the
    case of Baladin2
    , the members of the family of the
    appellants and other residents of the village had
    assembled together; some of them shared the common
    object of the unlawful assembly, while others were
    merely passive witnesses. Dealing with such an
    assembly, this Court observed that the presence of a
    person in an assembly of that kind would not
    necessarily show that he was a member of an unlawful assembly. What has to be proved against a
    person who is alleged to be a member of an unlawful
    assembly is that he was one of the persons
    constituting the assembly ,and he entertained along
    with the other members of the assembly the common
    object as defined by s.141, I.P.C. Section 142 provides
    that whoever, being aware of facts which render any
    assembly an unlawful assembly, intentionally joins
    that assembly, or continues in it, is said to be a
    member of an unlawful assembly. In other words, an
    assembly of five or more persons actuated by, and
    entertaining one or more of the common objects
    specified by the five clauses of s. 141, is an unlawful
    assembly. The crucial question to determine in such a
    case is whether the assembly consisted of five or more
    persons and whether the said persons entertained one
    or more of the common objects as specified by s.141.
    While determining this question, it becomes relevant
    to consider whether the assembly consisted of some
    persons who were merely passive witnesses and had
    joined the assembly as a matter of idle curiosity
    without intending to entertain the common object of
    the assembly. It is in that context that the observations
    made by this Court in the case of Baladin2
    assume
    significance; otherwise, in law, it would not be correct
    to say that before a person is held to be a member of
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    an unlawful assembly, it must be shown that he had
    committed some illegal overt act or had been guilty of
    some illegal omission in pursuance of the common
    object of the assembly. In fact, s.149 makes it clear
    that if an offence is committed by any member of an
    unlawful assembly in prosecution of the common
    object of that assembly, or such as the members of
    that assembly knew to be likely to be committed in
    prosecution of that object, every person who, at the
    time of the committing of that offence. is a member of
    the same assembly, is guilty of that offence; and that
    emphatically brings out the principle that the
    punishment prescribed by s.149 is in a sense vicarious
    and does not always proceed on the basis that the
    offence has been actually committed by every
    member of the unlawful assembly. Therefore, we are
    satisfied that the observations made in the case of
    Baladin2
    must be read in the context of the special
    facts of that case and cannot be treated as laying down
    an unqualified proposition of law such as Mr.
    Sawhney suggests.”
    (underlined by us)
  13. After considering the cases on the point including Masalti1
    , the
    order of acquittal passed by the High Court was set aside by this Court in
    State of Maharashtra vs. Ramlal Devappa Rathod and others3
    . Relevant
    paragraphs of the decision are:-
    “22. We may at this stage consider the law of
    vicarious liability as stipulated in Section 149 IPC.
    The key expressions in Section 149 IPC are:
    (a) if an offence is committed by any member of
    an unlawful assembly;
    3 (2015) 15 SCC 77
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    (b) in prosecution of common object of that
    assembly;
    (c) which the members of that assembly knew to
    be likely to be committed in prosecution of that
    object;
    (d) every person who is a member of the same
    assembly is guilty of the offence.
    This section makes both the categories of persons,
    those who committed the offence as also those who
    were members of the same assembly liable for the
    offences under Section 149 IPC, if other requirements
    of the section are satisfied. That is to say, if an offence
    is committed by any person of an unlawful assembly,
    which the members of that assembly knew to be likely
    to be committed, every member of that assembly is
    guilty of the offence. The law is clear that
    membership of unlawful assembly is sufficient to hold
    such members vicariously liable.
  14. It would be useful to refer to certain decisions of
    this Court. In State of U.P. v. Kishanpal4
    it was
    observed: (SCC p. 93, para 47)
    “47. … It is well settled that once a membership
    of an unlawful assembly is established it is not
    incumbent on the prosecution to establish
    whether any specific overt act has been assigned
    to any accused. In other words, mere membership
    of the unlawful assembly is sufficient and every
    member of an unlawful assembly is vicariously
    liable for the acts done by others either in the
    prosecution of the common object of the unlawful
    assembly or such which the members of the
    unlawful assembly knew were likely to be
    committed.”
    Further, in Amerika Rai v. State of Bihar5
    it was
    observed as under: (SCC p. 682, para 13)
    4 (2008) 16 SCC 73
    5 (2011) 4 SCC 677
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    “13. The law of vicarious liability under Section
    149 IPC is crystal clear that even the presence in
    the unlawful assembly, but with an active mind,
    to achieve the common object makes such a
    person vicariously liable for the acts of the
    unlawful assembly.”
  15. The liability of those members of the unlawful
    assembly who actually committed the offence would
    depend upon the nature and acceptability of the
    evidence on record. The difficulty may however arise,
    while considering the liability and extent of
    culpability of those who may not have actually
    committed the offence but were members of that
    assembly. What binds them and makes them
    vicariously liable is the common object in prosecution
    of which the offence was committed by other
    members of the unlawful assembly. Existence of
    common object can be ascertained from the attending
    facts and circumstances. For example, if more than
    five persons storm into the house of the victim where
    only few of them are armed while the others are not
    and the armed persons open an assault, even unarmed
    persons are vicariously liable for the acts committed
    by those armed persons. In such a situation it may not
    be difficult to ascertain the existence of common
    object as all the persons had stormed into the house of
    the victim and it could be assessed with certainty that
    all were guided by the common object, making every
    one of them liable. Thus when the persons forming
    the assembly are shown to be having same interest in
    pursuance of which some of them come armed, while
    others may not be so armed, such unarmed persons if
    they share the same common object, are liable for the
    acts committed by the armed persons.”
  16. If we now consider the facts in the present matter, the case lies in a
    short compass. The case of the prosecution that five accused had entered
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    the house of the deceased on the fateful night is accepted. It is also found
    that each one of them was separately armed and two of them were armed
    with sharp cutting weapons. As far as other three accused i.e. the present
    respondents were concerned, the first one had a Ballam while the other two
    were having lathis. It is true that the deceased had only two injuries on the
    person which were the cause of death. To the extent that the persons who
    were armed with sharp cutting weapons were found responsible for causing
    the death is also not disputed or challenged. The evidence on record fully
    establishes that the present respondents had also accompanied those two
    accused persons who were found responsible for the crime and all of them
    had entered the house of the deceased around midnight. It is crucial to note
    that the incident did not happen in any public place where the presence of a
    non-participating accused could, at times, be labelled as that of an innocent
    bystander. The role played by each one of them was clear and specific.
    They had stormed into the house in the dead of the night.
  17. On the strength of the principles accepted and laid down in the
    cases as aforementioned, their liability is fully established. Merely because
    the other three accused persons i.e. the present respondents had not used
    their weapons does not absolve them of the responsibility and vicarious
    liability on which the very idea of charge under Section 149 IPC is
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    founded. For the application of the principle of vicarious liability under
    Section 149 IPC what is material to establish is that the persons concerned
    were members of an unlawful assembly, the common object of which was
    to commit a particular crime. The fact that five persons were separately
    armed and had entered the house of the deceased during night time is
    clearly indicative that each one of them was a member of that unlawful
    assembly, the object of which was to commit the crime with which they
    came to be charged in question. The High Court was not justified in
    granting benefit to those three accused.
  18. The presence of the respondents in the house of the deceased; the
    fact that they were armed; the fact that all of them had entered the house
    around midnight and further fact that two out of those five accused used
    their deadly weapons to cause the death of the deceased was sufficient to
    attract the principles of vicarious liability under Section 149 IPC.
  19. The High Court was not justified in entertaining a doubt that it
    could not be ruled out that the respondents were merely named along with
    the other accused persons. There was absolutely no room for such doubt.
    The testimony of the eye witnesses namely the wife and the son, who were
    occupants of the same house, was quite clear and cogent.
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  20. We have, therefore, no hesitation in allowing these Appeals. We,
    thus, set aside the view taken by the High Court insofar as the present
    respondents namely Killu @ Kailash, Devendra and Kailash Nayak are
    concerned. We set aside their acquittal as recorded by the High Court and
    restore the judgment and order of conviction passed by the Trial Court in
    Sessions Trial No. 173 of 2005 against said respondents.
  21. The respondents shall surrender within three weeks, failing which
    the concerned police shall immediately arrest them and send them to
    custody to undergo the sentence imposed upon them. A copy of this
    Judgment shall be sent to the concerned Chief Judicial Magistrate and the
    Police Station for immediate compliance.
    ………………………J.
    [Uday Umesh Lalit]
    ………………………J.
    [Indu Malhotra]
    New Delhi;
    November 19, 2019.