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Synopsis

A division bench of the Bombay High Court at Aurangabad comprising Justice Vibha Kankanwadi and Justice Abhay Waghase has recently held that a mere plea ‘not being armed’ would not absolve a person from liability under Section 149 of the IPC.

“Mere plea ‘not being armed’ would not absolve a person from liability. Once their gathering has been demonstrated to have indulged in unlawful act, sharing of common intention comes into play,” the court observed.

During the high court appeal, five accused, who were previously convicted by the trial court for killing a man during a quarrel, sought to challenge their conviction. It was alleged that two of the appellants used weapons to commit the murder, while the other attempted to stop the victim's wife from intervening.

Advocate Mahesh Kale, representing the appellants, argued during the high court appeal that Hanuman, Meenabai, and Sojarbai were wrongly convicted as no overt act was attributed to them, and they did not cause any injuries. He contended that holding them guilty merely under Section 149 of IPC was unjustified.

Kale further highlighted that the prosecution's claim of direct eyewitness accounts had material omissions, contradictions, and inconsistencies, making their evidence unreliable and lacking credibility.

In its order, the high court noted that while the commission of an overt act by a person is one way to prove their shared common object under Section 149 of the IPC, it is not the sole determining factor.

The court emphasized that once a person's actions fall within the scope of Section 149 IPC, it becomes immaterial whether they individually performed any specific act.

“Once the case of a person falls within the ingredients of Section 149 IPC, the question that he did nothing on his own, would be immaterial, as everybody is considered to be aware of the probable and natural outcome of the acts with which they have formed unlawful assembly,” the bench added.

The division bench further clarified that the ratio decidendi is that Section 149 IPC imposes guilt on every person who is a member of an unlawful assembly at the time of committing the offence. This provision establishes a form of constructive or vicarious liability for the members of the unlawful assembly for any unlawful acts committed by any member of the assembly in furtherance of the common object.

The bench, while affirming the trial court's order, clarified that liability under Section 149 can only be imposed for acts carried out in pursuit of the common object of the unlawful assembly or for offences that the members of the unlawful assembly knew were likely to be committed in the pursuit of that object.

Case title: Hanuman Karkar & Ors vs State of Maharashtra