Supreme Court Sets Aside Convictions Under Section 149 IPC Due to Acquittal of Four Co-Accused and Absence of Unnamed Persons. Conviction for Rioting and Mischief Cannot Stand Without Proof of Unlawful Assembly of Five or More Persons as Required Under Indian Penal Code Sections 147 and 149.

Criminal appeal by special leave against conviction under Indian Penal Code sections 326 read with 149, 147, and 426.

Appellants sought setting aside of the High Court judgment and their convictions and sentences.

The High Court altered conviction from Section 304 Part II read with Section 149 to Section 326 read with Section 149 and maintained convictions under Sections 147 and 426; appellants argued that after acquittal of four named co-accused, remaining three could not constitute an unlawful assembly of five persons.

Trial court convicted three appellants under Section 304 Part II read with Section 149 and under Sections 147 and 426 IPC, acquitted four other named accused and all accused under Section 302 read with Section 149 and appellants 2 and 3 under Section 323; High Court altered conviction to Section 326 read with Section 149, maintained Section 147 and 426 convictions and sentences.

Whether after acquittal of four co-accused named in the charge, the remaining three accused could be convicted under Section 147 and with aid of Section 149 IPC without evidence of other unnamed persons. Whether an accused can be held constructively liable for the act of an acquitted person. Whether the High Court could uphold conviction without recording a definite finding about existence of an unlawful assembly and the specific acts committed by its members.

The appellants contended that once four named accused were acquitted, the remaining three could not form an unlawful assembly of five persons, and without proof of unnamed participants, no conviction under Section 147 or with aid of Section 149 IPC could stand. The appellants further argued that an accused cannot be held vicariously liable for the act of an acquitted person, relying on Harchanda v. Rex.

For a conviction under Section 147 or with the aid of Section 149 IPC, the prosecution must prove the existence of an unlawful assembly of five or more persons sharing a common object. If named accused are acquitted, the remaining accused cannot be held vicariously liable for the acts of the acquitted persons unless the charge or evidence establishes the participation of other unnamed persons and no prejudice results. An accused cannot be constructively liable for an act committed by an acquitted co-accused when the prosecution case named only the acquitted and convicted persons. The High Court must record a definite finding on the existence of an unlawful assembly and the particular act committed by each member in furtherance of the common object.

There is no doubt that the High Court has observed in its judgment under appeal that Laldeo Singh was killed as a result of one of the shots fired at him by Ram Bilas Singh Gumasta who was acquitted by the court of Session. It is competent to a court to come to the conclusion that there was an unlawful assembly of five or more persons, and actually convict less than that number for the offence if (a) the charge states that apart from the persons named, several other unidentified persons were also members of the unlawful assembly whose common object was to commit an unlawful act and the evidence led to prove this is accepted by the court; (b) or that the first information report and the evidence shows such to be the case even though the charge does not state so; (c) or that though the charge and the prosecution witnesses named only the acquitted and the convicted accused persons there is other evidence which discloses the existence of named or other persons provided that in cases (b) and (c) no prejudice has resulted to the convicted person by reason of the omission to mention in the charge that the other unnamed persons had also participated in the offence. An accused person cannot be held liable vicariously for the act of an acquitted person.

On April 22, 1957, an incident occurred at a Dochara in village Dihara. The police lodged a report, conducted an inquest, and arrested seven accused. The accused were committed for trial before the Court of Session for offences under Sections 148, 302 read with 149, and 426 IPC, with specific charges against some accused under Sections 302 and 307, and against appellants 2 and 3 under Section 323. The Sessions Court convicted the three appellants under Section 304 Part II read with Section 149 and under Sections 147 and 426 IPC, but acquitted the four co-accused and acquitted all accused under Section 302 read with Section 149. The High Court of Patna, in Criminal Appeal No. 326 of 1958, altered the conviction from Section 304 Part II read with Section 149 to Section 326 read with Section 149 and maintained convictions under Sections 147 and 426 with sentences. The appellants then appealed to the Supreme Court by special leave.

• Indian Penal Code, 1860: 147, 148, 149, 302, 304 Part II, 307, 323, 326, 426