Conviction Under Section 149 IPC Cannot Be Sustained Where Number of Identified Accused Falls Below Five

The prosecution alleged that on March 13, 1986, seven named accused persons, armed with lathis and dandas, assaulted the informant (P.W.-1) and his son (P.W.-2) over a land boundary dispute, also allegedly committing theft of valuables

One accused died during the trial, and six faced trial for offences under Sections 147, 307/149, and 379 IPC

The Trial Court acquitted four of the accused but convicted the two appellants (Ram Palat and Bigranchhu) under Section 323/149 IPC, sentencing them to six months’ imprisonment

During the pendency of the appeal, appellant Ram Palat died, leaving Bigranchhu as the sole surviving appellant

Whether two persons can be legally convicted for an offence with the aid of Section 149 of the IPC when all other co-accused members of the alleged assembly have been acquitted

The court applied Section 141 of the IPC, which defines an "unlawful assembly" as requiring five or more persons with a common object

It further applied Section 149 IPC, which creates vicarious liability for members of such an assembly

The court relied on the Supreme Court precedents of Mohan Singh v. State of Punjab (1962), Subran v. State of Kerala (1993), and Mahendra v. State of M.P. (2022), which establish that if the number of persons found to have taken part in an incident is less than five due to the acquittal of named co-accused, Section 149 cannot be invoked unless it is proved that other unidentified or unnamed persons were also part of the assembly

The Court observed that while seven persons were originally named, one died and four were acquitted of all charges

The prosecution did not allege the involvement of any other unidentified or unnamed persons

Following the acquittal of the four co-accused, the number of persons proved to be involved was reduced to two

The Court reasoned that since an "unlawful assembly" must legally consist of at least five persons under Section 141, the conviction of only two individuals with the aid of Section 149 is unsustainable

The Court found that once the assembly is deemed to have been composed of fewer than five members due to specific acquittals of named individuals, the essential postulate for invoking Section 149 IPC—the existence of an unlawful assembly—ceases to exist

The High Court allowed the appeal, set aside the judgment of the Trial Court, and acquitted the surviving appellant, Bigranchhu, of the charges