Jharkhand High Court
Ruplal Mahto vs The State Of Jharkhand on 18 January, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No. 683 of 2012
[Against the judgment of conviction dated 25.05.2012 and order of sentence dated
29.05.2012 passed by learned Additional Sessions Judge-I, Bokaro in Sessions
Trial No.372 of 1998(A)]
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Ruplal Mahto .... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellant
: Mr. Munga Lal Kumar Chitra, Advocate
For the State: Mr. Saket Kumar, A.P.P.
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PRESENT : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
1. Instant appeal is filed against the judgment of conviction dated 25.05.2012
and order of sentence dated 29.05.2012 passed by learned Additional Sessions
Judge-I, Bokaro in Sessions Trial No.372 of 1998(A) whereby and whereunder
the appellant has been sentenced to rigorous imprisonment for two years under
Section 148 of the Indian Penal Code and rigorous imprisonment for seven years
under Sections 307/149 of the Indian Penal Code with fine of Rupees Five
Thousand. All the sentences to run concurrently.
2. F.I.R. was registered on written report of Mahavir Mahto against
altogether seven accused persons being Nawadih P.S. Case No.0084/1997 under
Sections 147, 148, 149, 323, 324 of the IPC. As per the F.I.R., all the named
accused persons including this appellant came to the agriculture field of the
informant where he was ploughing his field and conjointly assaulted him. It is
alleged that the informant and one Nakul Mahto were assaulted by the accused
persons. Mangal Mahto assaulted with Lathi, Puran Mahto with Farsa, Sanichar
Mahto with sword. Consequently, the informant sustained critically injury and
became unconscious.
3. The police, on investigation, found the case true and charge sheet was
submitted against all the accused persons. Charge was framed against all the
accused persons including this appellant on 29.09.2000 and they were put on trial,
evidence was recorded and after the conclusion of the prosecution evidence,
statement of the accused persons was also recorded.
4. Thereafter, appellant absconded and his trial was separated on 25.01.2006
and supplementary case record being S.T. No.372/1998A was registered. The
other accused persons who were put on trial, were acquitted of the charges by
judgment passed in S.T. No.372/1998 on 24th November, 2006.
5. The appellant-Ruplal Mahto was subsequently put on trial and convicted of
offence.
6. It is submitted by the learned counsel on behalf of appellant that Section
149 of the IPC will not apply in the present case as the other co-accused persons,
who were alleged to have been the member of unlawful assembly, were acquitted
of the charges. Consequently, the appellant cannot be solely convicted by
invoking the principles of joint liability under Section 149 of the IPC. A plain
reading of F.I.R. will go to show that there is no overt act attributed against this
appellant. The allegation of assault with Lathi, sword and axe is against other co-
accused persons, who were put on trial and acquitted of the charges. Strangely
enough, the appellant has been convicted by invoking the sentence under Section
149 of the IPC.
7. Learned APP has defended the impugned Judgment.
8. Main point for determination is whether a sole accused can be held guilty
of offence with Section 149 of the IPC, when other co-accused persons have been
acquitted of the charges?
9. As per the prosecution case, only seven persons were initially put on trial
along with this accused. Entire evidence was recorded and even the statement of
the accused persons had been recorded under Section 313 of the Cr.P.C. It was at
this stage that the appellant absconded, and his trial was separated. Other six were
acquitted of the charges and appellant has been convicted under Section 148 and
Sections 307/149 of the IPC. There is no direct evidence of assault against the
appellant and criminal liability has been fastened on him for being member of
unlawful assembly.
10. This Court is of the view that when all the other members of the unlawful
assembly have been acquitted of the charges, the appellant cannot alone be held
guilty for offence of group liability under Section 148 or Section 307/149. Since
Section 149 imposes constructive criminal liability, therefore, it must be strictly
construed. A Judgment of conviction can be returned against less than five
persons, where it is possible to conclude that though five or more persons were
unquestionably at the place of occurrence, but the identity of one or more was in
doubt. It has been held in,
Dalip Singh v. State of Punjab, (1953) 2 SCC 36
18. This is not to say that five persons must always be
convicted before Section 149 can be applied. There are cases and
cases. It is possible in some cases for Judges to conclude that
though five were unquestionably there the identity of one or more
is in doubt. In that case, a conviction of the rest with the aid of
Section 149 would be good. But if that is the conclusion it
behoves a court, particularly in a murder case where sentences of
transportation in no less than four cases have been enhanced to
death, to say so with unerring certainty. Men cannot be hanged
on vacillating and vaguely uncertain conclusions.
Amar Singh v. State of Punjab, (1987) 1 SCC 679
9. In our opinion, there is much force in the contention. As the
appellants were only four in number, there was no question of
their forming an unlawful assembly within the meaning of Section
141 IPC. It is not the prosecution case that apart from the said
seven accused persons, there were other persons who were
involved in the crime. Therefore, on the acquittal of three accused
persons, the remaining four accused, that is, the appellants,
cannot be convicted under Section 148 or Section 149 IPC for
any offence, for, the first condition to be fulfilled in designating
an assembly an "unlawful assembly" is that such assembly must
be of five or more persons, as required under Section 141 IPC. In
our opinion, the convictions of the appellants under Sections 148
and 149 IPC cannot be sustained.
Under the circumstance, for the reasons discussed above, Judgment of
conviction and sentence is set aside. Appellant is on bail, and accordingly sureties
are discharged of the liabilities of their bail bond.
Criminal appeal is allowed.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated, 18th January, 2024
NAFR/Anit
