Criminal Appeal No. 100 of 1991

14th October, 1999

Petitioner Counsel: Mr. R.V. MORE
Respondent Counsel: Mr.I.S. THAKUR

JUDGMENT

JUDGMENT :- The appellants have challenged in this Appeal the order of the 3rd Addl. Sessions Judge, Sangli dated 14-12-1990 in Sessions Case No. 31 of 1989 convicting them under Section 149 of IPC and directing them to execute a bond to keep good behavior for period of two years in the sum of Rs. 2000/- under Section 360 of Cr. P.C.

2. The appellants were charged in the trial Court for Several offence as follows:

Firstly they were charged for the offence of rioting punishable under Section 147 of IPC. Secondly, they were charged for the offence of rioting under Section 148 of IPC. Thirdly, they were charged for the offence under Section 307 read with Section 149 of IPC. Fourthly they were charged under Section 323 read with Section 149 of IPC. Fifthly they were charged under Section 506 read with Section 149 of IPC. They were also charged under Section 379 for theft read with Section 149 of IPC. Lastly they were charged under Section 427 for mischief read with Section 149 of IPC.

After considering the evidence led by the prosecution and the defence of the appellants, the trial Court by its Judgment and order dated 14-12-1990 acquitted the original accused Nos. 3,5,7 and 10 of all the offences out of the total number of ten accused who were being prosecuted for the aforesaid offences. So far as the present appellants are concerned, who were original accused Nos. 1,2,4,6,8 and 9 they were acquitted of all the charges except the offence under Section 149 of IPC and directed to be released on probation on their executing a bond under Section 360 of Cr. P.C. as stated earlier. From the observations of the learned Judge made in para 28 of the Judgment, it appears that he had held the appellants guilty for having committed offences punishable under Sections 147 and 148 i.e. for rioting and for committing mischief under Section 427 of IPC. The offence punishable under Section 427 of IPC was allowed to be compounded as the same is compoundable under Section 320 of Cr. P.C. with permission of the Court. The trial Court allowed the compounding of the offences under Sections 147 and 148 of IPC also for the reasons given in paragraph 28 of the judgment. The learned Judges ultimately convicted the appellants only under Section 149 of IPC and instead of sentencing them, they were directed to be released on probation under Section 360 of Cr. P.C. on their executing bond in the Sum of Rs. 2000/- for a period two years.

3. The aforesaid order is impugned in this appeal. At the time of admission this Court had granted stay to the execution of the sentence i.e. execution of bonds as directed by the trial Court. The said stay order was passed on 4-4-91 and, therefore, none of the appellants had executed the bond as directed by the trial Court.

4. Mr. More contended that if the appellants are acquitted of all the offences they cannot be convicted only under Section 149 of IPC. I find substance in the said contention. Section 149 of IPC is worded as follows:

" 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object - If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."

From the perusal of Section 149 of IPC it is clear that by virtue of the said provision even those members of an unlawful assembly who do not actually participate in the commission of an offence are also liable to be held guilty for the offence committed by any other member or members of the assembly or even if the non-participating members of that assembly knew that the said offence was likely to be committed in prosecution of their common object. In other words what is essential to hold every member of an offence committed by any other member or members of that assembly is that either the assembly as whole had intended to commit that offence or the other members had the knowledge that the said offence was likely to be committed in prosecution of the common object of that assembly i.e. in execution of the other intended object of that assembly. Thus the commission of an offence by any member of an unlawful assembly pursuant to or in prosecution or furtherance of the common object of that assembly is sine qua non for holding any other member of that unlawful assembly guilty of that offence. Negatively speaking, if no offence is committed by any of the members of an unlawful assembly in prosecution or in furtherance of the common object of that assembly, there is no question of holding other members of that assembly guilty.

5. In this case the offence of mischief under Section 427 of IPC was allowed to be compounded by the trial Court. Similarly offences of rioting punishable under Sections 147 and 148 of IPC were also allowed to be compounded by the trial Court and, therefore, no order of conviction was recorded and consequently no sentence was awarded against any of the appellants for the said offences. The offences can be compounded either by the parties themselves or by the parties with the permission of the Court under Section 320 of Cr. P.C. The effect of compounding of an offence is of an acquittal of the accused with whom the offence has been compounded as provided under sub-section 8 of Section 320 of Cr. P.C. which reads as follows:

"320. Compounding of offences,

... ... ... ...

(8) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded."

6. Thus when the trial Court allowed the parties to compound offence under Sections 147 and 148 and Section 427 of IPC and, therefore, did not record the order of conviction under those provisions and on the contrary recorded an order of acquittal expressly in the impugned order when it has been stated that " these accused are acquitted for the rest of the charges", in my view, the appellants could not have been convicted or sentenced under Section 149 of IPC simpliciter as there was no commission of any offence by any of the appellants in furtherance of the common object of their unlawful assembly which is an essential requirement for applicability of Section 149 of IPC. In my opinion, there cannot be conviction under Section 149 of IPC simpliciter the object of which is only to cover or draw assembly for their vicarious liability who had shared the common intention for the commission of an offence but did not actually participate in the commission of the offence.

7. It is significant to note that the learned trial Judge did not frame independent charge for the offence under Section 149 of IPC but said Section 149 had been clubbed along with other offences punishable under Sections 307, 323 506, 379 and 427 of IPC. This does indicate that the trial Judge himself was aware that there cannot be charge under Section 149 of IPC simpliciter. It may also be mentioned here that there was no charge framed under Sections 147 and 148 of IPC. In the above position of law, I am of the view that the conviction of the appellants recorded by the trial Court under Section 149 of IPC simpliciter is clearly illegal and has to be set right in this appeal.

8. In the result the appeal is allowed and the order of conviction and sentence recorded under Section 149 of IPC by the 3rd Addl. Sessions Judge by his judgment and order dated 14-12-1990 in Sessions Case No. 31 of 1989 is hereby quashed and set aside. The bail bonds of all the appellants, therefore, shall consequently stand cancelled.

Appeal allowed