An overt act is not always strict requirement for culpability of member of unlawful assembly, says SC


An overt act is not always an inflexible requirement of rule of law to establish culpability of a member of an unlawful assembly. The crucial question is whether the assembly entertained a common unlawful object and whether the accused was one of the members of such an assembly by intentionally joining it or by continuing in it being aware of the facts which rendered the assembly unlawful. Without unlawful object no assembly becomes an unlawful assembly. These observations were made in the case of Muthuramalingam & Ors. v. State Represented By Inspector Of Police [Criminal Appeal Nos. 231-233 OF 2009] by a two-judge bench of the Supreme Court comprising Justice Pinaki Chandra Ghose and Justice Amitava Roy on 9 December 2016.

In this case, a person named Rajendran had died in an earlier case on 09.02.1994, and the appellants in the present case and few others were accused in that case. The family members of Rajendran were coming back to their village after attending the cremation of Rajendran, at which time accused persons assembled unlawfully with deadly weapons and with the common intention to commit murder, they chased the family members of deceased Rajendran when they got down from the bus in the village near Karisalkulam Branch Road. The accused persons, in a gruesome attack on the family members, murdered 8 persons. The trial court convicted 19 accused persons under different sections of law, some of them for offences including for murder. The punishment of life imprisonment was awarded to these accused.

In appeal, the high court acquitted 4 accused persons. But, the High Court found all other accused guilty of eight barbaric murders and attempt to murder while forming unlawful assembly. The high court modified the conviction and sentence, inter alia, for the following accused: “A1 to A4, A6, A8 to A12, A14 to A17 are convicted under section 302 read with Section 149 IPC (8Counts) instead of 302 read with 34 IPC and sentenced to undergo imprisonment for life for each count”. The High Court confirmed the direction given by the Trial Court that the sentences of life imprisonment imposed for each count and sentence of imprisonment for 10 years, shall run consecutively.

In appeal before the Supreme Court, the legitimacy of the consecutive life sentences in the light of Section 31 of the Code of Criminal Procedure was also challenged. This issue was referred to a Constitution bench, which decided this issue in the judgment reported vide Muthuramalingam v. State, (2016) 8 SCC 313 (read here), in which it was held as under:

“The power of the Court to direct the order in which sentences will run is unquestionable in view of the language employed in Section 31 of the Cr.P.C. The Court can, therefore, legitimately direct that the prisoners shall first undergo the term sentence before the commencement of his life sentence. Such a direction shall be perfectly legitimate and in tune with Section 31. The converse however may not be true for if the Court directs the life sentence to start first it would necessarily imply that the term sentence would run concurrently. That is because once the prisoner spends his life in jail, there is no question of his undergoing any further sentence.”

In view of these reasons, in the present matter, the Supreme Court observed that the only substantial question which remained for its consideration was whether the High Court in the facts and circumstances of the case, was justified in modifying the conviction from that under Section 302 read with Section 34 IPC to that of Section 302 read with Section 149 IPC.

In this connection, the Supreme Court referred to its previous decisions in the following cases:

  • Devi Lal Vs. State of Rajasthan, (1971) 3 SCC 471.
  • Willie (William) Stanley Vs. State of M.P., AIR 1956 SC 116.
  • Chhitarmal Vs. State of Rajasthan, (2003) 2 SCC 266.
  • Umesh Singh & Anr. Vs. State of Bihar, (2000) 6 SCC 89.
  • Mohan Singh Vs. State of Punjab, AIR 1963 SC 174 : 192 Supp (3) SCR 848.
  • Mahadeo Singh Vs. State of Bihar, (1970) 3 SCC 46.
  • Shambhunath Singh Vs. State of Bihar, AIR 1960 SC 725.
  • Mizaji Vs. State of UP, AIR 1959 SC 572.

For example, the Supreme Court referred to the fact that a distinction between “common intention” and “common object” was made out by Supreme Court in the above case of Chhitarmal Vs. State of Rajasthan, (2003) 2 SCC 266, as under:

“A clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or pre-concert. Though there is substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under section 149 overlaps the ground covered by section 34.”

In view of these circumstances, the Supreme Court held that prosecution case has been well established by the testimonies of eye-witnesses PW1-PW3 and corroborated by PW4, wherein factum of unlawful assembly was proved.

The court held that the accused-appellants had caused the death of eight persons in a barbaric and brutal manner wherein merciless killing of a child of only 1½ years was also involved. Therefore, observing that the accused in the present case did not deserve any sympathy, the Supreme Court dismissed their appeals and upheld the judgment passed by the High Court as far as awarding of sentences. However, it was directed that the sentences shall run in conformity with the observations made by the Constitution Bench of Supreme Court in its above judgment dated 19.07.2016 (read here) passed in these appeals. The impugned judgment passed by the High Court was modified to the above extent.

Read full order of the court:


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