COURT
THE SUPREME COURT OF INDIA
CASE TITLE
SURENDRA SINGH VS STATE OF RAJASTHAN & ANR.
BENCH
HON’BLE JUSTICE MR. M.R.SHAH
DATE OF ORDER
11TH APRIL 2023
PARTIES
APPELLANT- SURENDRA SINGH
RESPONDENT- STATE OF RAJASTHAN & ANR
SUBJECT
The court questions that whether the accused (respondent herein) is liable to be convicted under Section 302 read with Section 149 of Indian Penal Code,1860.
OVERVIEW
- The appeal is filed against the dissatisfying and impugned judgement and order passed by HC of Rajasthan at Jaipur bench dated 20.11.2018.
- The facts of the case is that on 28.11.2010 appellant’s brother Narendra Singh was lathi attacked by five accused namely Bhupendra Singh, Vijendra Singh and Bhawani Singh, Sangeeta and Gulab Kanwar. Narendra Singh and Bhawani Singh became unconscious and were taken to hospital where the latter died.
- Though FIR was filed against five, chargesheet was filed against two namely Bhupinder Singh and Vijendra Singh under Section 341, 323, 325/34, 308/34 and 302 and alternatively, Section 302/34 IPC.
- During the trial of the case, Bhupinder Singh died and the other three against whom charge sheet wasn’t filed absconded for many years.
- Trial court convicted accused Vijendra Singh under offence punishable under Sections 147, 323, 302/149 IPC and sentenced him to undergo life imprisonment for the offence punishable under Sections 302 read with Section 149 IPC, one year R.I. for the offence under Section 323 IPC and two years R.I. for the offence under Section 147 IPC.
- The respondent herein preferred an appeal before the HC. In that impugned order and judgement, HC set aside conviction for the offence punishable under section 302/149 of IPC of the respondent accused. But convicted him under the section 323 of IPC.
- The original complainant Surendra Singh has preferred the present appeal before the apex court.
ARGUMENTS ADVANCED BY APPLLEANT
- The counsel on the behalf of the appellant vehemently submitted that High Court has materially erred in observing the facts and circumstances of the cade.
- The counsel opposed the observation made by the High Court that no case was made out of conviction with the aid of section 149 IPC.
- It was submitted that the High Court has not appreciated the fact that in the FIR the allegation made were specific against the five accused. After investigation, chargesheet was filed against two accused and the other three were arrayed as accused in pursuant to order passed by the magistrate allowing application under Section 319 IPC.
- The counsel submitted that when all five persons came to be tried may be separately there was involvement of unlawful assembly and hence section 149 IPC would be attracted.
ARGUMENTS ADVANCED BY RESPONDENT
- The counsel on the behalf accused submitted that the facts and circumstances of the case do not make out to convict under Section 149 IPC.
- The counsel submitted that merely accused might have been present and participated it the commencement of the offence but has not played any vital role.
- It was contended that unless it is proved that the other accused knew about the common object that they are likely to commit murder of the deceased, in no case section 149 IPC shall be attracted.
- Counsel also submitted that the accused could not have been convicted under Section 323 IPC because there was delay of three and a half days in lodging FIR, the injury of the neck was not proved and there were material contradictions on the injuries caused by the accused.
- It was prayed to acquit the accused even for the offence punishable under Section 323 IPC.
JUDGEMENT
- The court considered the facts and circumstances of the case and found that the High Court has not properly considered the FIR where specific allegation were made against the five accused.
- Court held that since the other three came to be added as accused by the trial court and their trial came to be ordered to be separated, in that view of the matter, five person facing trial against charges 302/149 IPC may be separately, Section 149 IPC would be attracted.
- Court found the respondent-accused to be a member of unlawful assembly of more than five persons and participating in the offence. The case would certainly fall under Section 149 IPC.
- Court held the impugned order and judgement passed by the High Court as unsustainable. The impugned order and judgement was quashed and set aside by the apex court.
- The apex court restored the judgement and order passed by the trial court convicting the respondent-accused under Section 427,323 and 302/149 of Indian Penal Code,1860.
CONCLUSION
It can be concluded from the above case that even if offence committed is not in direct prosecution of the common object of the assembly, it may yet fall within the ambit of section 149 IPC. It is necessary to be proved that the members knew that the offence is likely to be committed.
