Non- inclusion of Section 141 IPC in charge sheet does not mean the accused cannot be held guilty under Section 149 IPC.

The Hon’ble Supreme Court vide its order dated 08.08.2019 in Dev Karan @ Lambu vs. State of Haryana bearing Criminal Appeal No.299 of 2010, held that merely because Section 141 IPC which defines ‘unlawful assembly’ has not been included in the charge-sheet, it would not render the conviction of the accused under Section 149 IPC illegal. The Hon’ble Court further held that if the necessary ingredients of an unlawful assembly are met out and proved, as enunciated in Section 141, IPC, it would suffice the purpose.

Challenge

The factual matrix of this case is that on 28.07.1994 at 3 AM, Jaibir (‘deceased’) was consuming liquor with his five friends, including the complainant Surender (PW-7) and Ajay Bhan (PW-8) in an under-construction building and as the liquor fell short, one of the friends, Sandeep went out to buy liquor. After some time, the deceased with his remaining friends heard the raised voice of Sandeep and found out that accused Krishna and Vidhya Rattan were abusing and quarrelling with Sandeep. The deceased intervened and asked the accused persons to come in the day time. Thereafter, the deceased went back along with his friends to the under-construction building. After some time, seven persons including the above-mentioned two accused entered the under-construction building where the deceased was consuming liquor with his friends. They all were carrying deadly weapons, like swords, lathi and wooden rafters. They all attacked the deceased with their weapons and killed him. The friends of the deceased tried to help but were severely injured with grievous injuries.

FIR was registered and charge-sheet was filed under section 148, 302, 307, 325 read with 149, IPC, 1860. The accused persons were convicted under Section 148, 302, 307, 325 read with 149 and Section 449 IPC by the Trial Court. An appeal was filed before the High Court, the same was rejected. Therefore, the accused came filed the present appeal.

The submission of the Appellant was that as Section 141, IPC was not invoked in the charge-sheet, which defines ‘Unlawful Assembly’, accused persons cannot be convicted under Section 149, IPC which says that every member of unlawful assembly guilty of offence commit­ted in prosecution of common object is guilty for the offense. The reasoning  given by the counsel for the Accused for the said submission was that as Section 141, IPC defines unlawful assembly and the same is not invoked, therefore, there is no question of holding the accused liable for Section 149, for which the accused has to be a member of the unlawful assembly.

Held

The Hon’ble Supreme Court, after examining the definitions of Section 141 to 149 IPC and submissions of the parties, dismissed the appeal holding that non-invocation of Section 141, IPC in the charge-sheet is a technical error and this error cannot be held to be so fatal as to hold the conviction under Section 149 IPC illegal, when case under Section 149, IPC has been made out without any reasonable doubt.