Mere presence without active role sufficient to hold conviction of unlawful assembly: SC

The Supreme Court has on July 8, 2024 held that mere presence of accused with the other co-accused amounted to an unlawful assembly, which is sufficient for conviction, even if they may have not actively participated in the commission of the crime.

A bench of Justices Abhay S Oka and Pankaj Mithal upheld conviction and sentence of life imprisonment imposed upon appellants Suresh Dattu Bhojane and another person and Satish Rama Bhojane in a case related to murder and assault by unlawful assembly.

The appellants challenged the order, contending there was no active participation visible from evidence on record so as to form a common object which would warrant application of Section 149 of IPC.

Referring to the testimony of the eye-witnesses, and other evidences, the bench said the courts below have rightly held that the deceased Mohan Mungase was killed by the accused persons on the fateful day in 1999 in the house of Mama Bhojane over an issue of running a liquor shop.

The court said the only point which arises for consideration is whether in the facts and circumstances of the case, the accused-appellants could also be convicted as they were not alleged to have been armed with any weapon and have not been assigned any specific role.

"The accused persons may not be armed and may not have been assigned any specific role but nonetheless their presence at the scene of the crime along with other accused persons is duly established. They were held to be part of the unlawful assembly with common object," the bench noted.

The court also recorded that the accused are undoubtedly part of unlawful assembly and were having the common object viz the killing of deceased Mohan Mungase and his brother Nandkumar Mungase. They had a clear motive for the purpose as the country liquor shop which was settled in favour of accused no one was entrusted to the deceased and his brother by the owner.

The assembly of all the accused persons in the house of Mama Bhojane with the deadly weapons was apparently for the purposes of teaching a lesson to the deceased and his brother to settle the score arising from the entrustment of the country liquor shop. Therefore, both the accused appellants were certainly part of the unlawful assembly having the common object and as such are guilty of the offence as envisaged under Section 149 of the IPC, the court said.

"The accused have been charged under Section 149 IPC. Therefore, their presence with the other co-accused amounted to an unlawful assembly which is sufficient for conviction, even if they may have not actively participated in the commission of the crime. It goes without saying that when the charge is under Section 149, the presence of the accused as part of the unlawful assembly itself is sufficient for conviction," the bench said.

The court thus held the accused appellants could not escape the conviction in view of the testimony of the eye-witnesses and the concurrent findings of the facts recorded by the courts below about their presence at the scene of the crime as part of unlawful assembly and their active role in surrounding the deceased with the common intention to kill him.

With regard to another accused appellant, the bench noted there is hardly any scope for interference with the conviction and sentence as he has been assigned an active role in the crime.

"All the eyewitness has categorically stated about his presence and that he was armed with deadly weapon, i.e., sword and that he had also wielded blows not only upon the deceased but upon the injured persons. In the light of this evidence, there is no flaw in his conviction," the bench said.

With regard to submission that he has already undergone over 13 years incarceration, the bench said the minimum sentence for committing murder is life imprisonment and therefore is not liable to be reduced.

In the event he has already undergone sufficiently long incarceration and is eligible for remission, he may or as a matter of fact even the others are at liberty to apply for remission for premature release in accordance with the policy of the State, the bench said, dismissing the appeals.