Case Note & Summary
The Supreme Court allowed the appeal of four accused convicted under Section 302 read with Section 149 IPC for the murder of Sahabuddin Choudhury. The incident occurred on 3 February 2013. The trial court convicted five accused, but one died during trial. The High Court confirmed the conviction of the four appellants but acquitted accused no. 5. The prosecution alleged that accused no. 1 took the victim from his residence and killed him with a sharp weapon. The appellants challenged the conviction on grounds of unreliable eyewitness testimony and improper recording of contradictions. The Supreme Court noted a fundamental flaw: Section 149 IPC requires an unlawful assembly of five or more persons under Section 141 IPC. Since only four accused were convicted, there was no unlawful assembly, and the conviction under Section 149 could not stand. The Court also criticized the trial court for not properly recording contradictions under Section 162 CrPC and Section 145 Evidence Act, as the witnesses were not confronted with their prior statements in the correct manner. The Court set aside the conviction and acquitted the appellants.
Headnote
A) Criminal Law - Murder - Unlawful Assembly - Section 302 read with Section 149 IPC - Section 141 IPC - Conviction under Section 302 with aid of Section 149 IPC requires an unlawful assembly of five or more persons as defined in Section 141 IPC. Where only four accused are convicted, the essential ingredient of an unlawful assembly is absent, and conviction under Section 149 cannot be sustained. The High Court erred in confirming conviction without modifying the charge to Section 34 IPC. (Paras 4)
B) Evidence Law - Contradictions - Recording of Cross-Examination - Section 162 CrPC - Section 145 Evidence Act - The trial court must follow the correct procedure while recording contradictions. Under Section 162 CrPC, a prior statement to police can be used to contradict a witness only in the manner provided by Section 145 Evidence Act. The witness's attention must be drawn to specific parts of the prior statement, and the contradictory part must be duly proved. Omissions may amount to contradictions only if they are significant and relevant as per the explanation to Section 162. (Paras 5-8)
Issue of Consideration
Whether the appellants could be convicted under Section 302 read with Section 149 IPC when only four accused were convicted, and whether the trial court properly recorded contradictions under Section 162 CrPC and Section 145 Evidence Act.
Final Decision
The Supreme Court allowed the appeal, set aside the conviction of the appellants, and acquitted them of all charges.
Law Points
- Section 149 IPC requires an unlawful assembly of five or more persons
- Section 141 IPC defines unlawful assembly
- Section 162 CrPC governs use of police statements
- Section 145 Evidence Act governs contradiction of witnesses
- omission may amount to contradiction if significant and relevant
Case Details
CRIMINAL APPEAL NO. 1637 OF 2021
Siddhartha Dave, Farrukh Rasheed, Seraj Ahmad, Jamti Ben Ao, Md. Ekhlakh Alam, Shuvodeep Roy, Pravir Choudhary, Reepak Kansal, Niharika, Abhishek Gaur
THE STATE OF ASSAM & ANR.
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Nature of Litigation
Criminal appeal against conviction for murder under Section 302 read with Section 149 IPC.
Remedy Sought
Appellants sought acquittal from conviction and sentence.
Filing Reason
Appellants were convicted for murder of Sahabuddin Choudhury; they challenged the conviction on grounds of unreliable evidence and improper procedure.
Previous Decisions
Trial Court convicted five accused; High Court confirmed conviction of four appellants and acquitted accused no. 5.
Issues
Whether the conviction under Section 302 read with Section 149 IPC is sustainable when only four accused were convicted, failing the requirement of an unlawful assembly of five or more persons under Section 141 IPC.
Whether the trial court properly recorded contradictions in cross-examination as per Section 162 CrPC and Section 145 Evidence Act.
Submissions/Arguments
Appellants argued that eyewitness testimony was unreliable, evidence of last seen together was weak, and contradictions were not properly recorded.
State argued that evidence of last seen together and motive established guilt, and conviction was correct.
Ratio Decidendi
For conviction under Section 149 IPC, there must be an unlawful assembly of five or more persons as defined in Section 141 IPC. Since only four accused were convicted, the essential ingredient of an unlawful assembly was absent, and the conviction under Section 149 cannot be sustained. Additionally, the trial court failed to properly record contradictions as required under Section 162 CrPC and Section 145 Evidence Act.
Judgment Excerpts
Under Section 149 of IPC, every member of an unlawful assembly is guilty of the offences committed in the prosecution of the common object of the unlawful assembly. Therefore, to apply Section 149 of IPC, there has to be an unlawful assembly. Section 141 of IPC defines unlawful assembly as an assembly of five or more persons. The High Court has not held that apart from the present appellants whose conviction was confirmed, others formed part of the unlawful assembly. Hence, there was no unlawful assembly within the meaning of Section 141 of IPC. Therefore, the appellants could not have been convicted for the offence punishable under Section 302 of IPC with the aid of Section 149.
The basic principle incorporated in sub-Section (1) of Section 162 is that any statement made by a person to a police officer in the course of investigation, which is reduced in writing, cannot be used for any purpose except as provided in Section 162.
Procedural History
The trial court convicted five accused for murder under Section 302 read with Section 149 IPC. One accused died during trial. The High Court confirmed the conviction of the four appellants and acquitted accused no. 5. The appellants appealed to the Supreme Court.
Acts & Sections
- Indian Penal Code, 1860 (IPC): 141, 149, 302
- Code of Criminal Procedure, 1973 (CrPC): 161, 162, 164
- Indian Evidence Act, 1872: 32, 27, 145
