GURMAIL SINGH & ANR versus STATE OF UTTAR PRADESH & ANR.

Citation: [2022] 13 S.C.R. 1011 · Decided: 17-10-2022 · Supreme Court of India · Bench: C.T. RAVIKUMAR · Disposal: Dismissed

Judgment (excerpt)

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[2022] 13 S.C.R. 1011
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GURMAIL SINGH & ANR.
v.
STATE OF UTTAR PRADESH & ANR.
(Criminal Appeal No. 965 of 2018)
OCTOBER 17, 2022
[C. T. RAVIKUMAR AND SUDHANSHU DHULIA, JJ.]
Penal Code, 1860: s.149 – Unlawful Assembly – In the instant
case, Accused Nos. 1 and 2 are real brothers of the victim-deceased
– Land dispute arose between accused persons and deceased – On
the fateful day, deceased got to know that accused nos. 1 and 2
were getting the paddy crops sown by deceased – When deceased
asked them to stop, appellant along with eight others assaulted him
in which he lost his life – Trial Court convicted all the accused
persons including appellant u/ss.302/149, IPC – High Court
confirmed conviction and sentence though seven of accused persons
died during its pendency, qua them appeal was dismissed – On
appeal, held: When the presence of the accused at the place of
occurrence as part of the unlawful assembly was not disputed it
will be sufficient to hold him guilty even if no overt act was attributed
to him on the principle of vicarious liability – As regards the question
of effect and impact of reduction of the number of convicts pending
an appeal owing to the death of co-convicts, s.394(1) CrPC provides
that every appeal, except an appeal against the sentence of fine,
would abate on the death of appellant as the sentence under appeal
could no longer be executed – Abatement is different from acquittal
– Mere fact that seven out of the ten convicts died, either during the
pendency of appeal before the High Court or Supreme Court, could
not be a reason to the non applicability of the provision for
constructive/vicarious liability – With respect to the contention of
appellant that conviction u/s.302/149 is liable to be altered as one
u/s.304/149, it is evident that appellant was not charged with offence
punishable u/s.302 IPC simpliciter rather convicted u/s.302/149 IPC
– As the membership of the appellant is proved, the appellant cannot
escape from the vicarious liability for the act committed by any one
of the members of assemblage, if the common object of was to commit
murder – Members of the unlawful assembly were carrying firearms
and used them against the deceased – When someone who sustained
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SUPREME COURT REPORTS
[2022] 13 S.C.R.
gunshot injuries and profusely bleeding was attacked and the
persons who attempted to come to his rescue were also attacked,
the only inference that can be drawn from such circumstances is
that the common object was to do away with the life of that person
– Hence, the contention of appellant of altering the conviction is
unsustainable – Code of Criminal Procedure, 1973 – s.394.
Dismissing the appeal, the Court
HELD: 1. The first question is when once the prosecution
established the membership of an accused / convict in the unlawful
assembly whether the individual overt act also to be established
by the prosecution to bring culpability on him on the principle of
constructive/vicarious liability. According to this Court, no such
burden can be fastened on the prosecution in view of the
phraseology under Section 149, I.P.C. [Para 11][1020-D]
Amerika Rai & Ors. v. State of Bihar; AIR 2011 SC
1379; Surendra & Ors. v. State of Uttar Pradesh AIR
2012 SC 1743; Yunis alias Kariya v. State of M.P. AIR
2003 SC 539; Amar Singh & Ors. v. State of Punjab
(1987) 1 SCC 679; Nethala Pothuraju & Ors. v. State of
Andhra Pradesh (1992) 1 SCC 49 – relied on.
2. The next question to be looked into to appreciate the
contentions of the appellant is whether the reduction in number
of the convicts below five on account of death of the co-accused
got any impact or effect on the surviving convict(s) in the matter
of consideration of his/their, vicarious liability in view of Section
149, I.P.C. There can be no two views on the position that
reduction of number of accused/convicts in an appeal, below five
on account of acquittal of co-accused/co-convicts and such
reduction in numbers below five due to death of co-convicts are
different and distinct. Going by Section 394(1), Cr.P.C. every
appeal under Section 377 or Section 378 shall finally abate on the
death of the accused. Sub-section (2) thereof provides that every
other appeal under Chapter-XXIX (except an appeal from a
sentence of fine) shall finally abate on the death of the appellant.
The position is that every appeal, except an appeal against the
sentence of fine, would abate on the death of the appellant,
because the 

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