Membership in an Unlawful Assembly Establishes Vicarious Liability Under Section 149 IPC Despite Lack of Overt Act

Eight accused (appellants) were convicted by the Sessions Judge, Basti, on March 21, 1985, for the murder of Shesh Bahadur Chauhan and injuries to PW-1 and PW-2.

The motive was political rivalry and a prior theft FIR lodged by the deceased against the group.

On April 1, 1984, the eight accused, variously armed with a spear, farsa, pistol, and lathis, arrived at the deceased’s tea shop.

When the victims fled in different directions, the attackers split into two factions of four each.

One faction murdered Shesh Bahadur and injured his mother (PW-2), while the other faction (including the sole surviving appellant, Ramakant) chased and shot PW-1 in the leg.

During the trial, PW-2 (the mother) initially supported the prosecution but later filed an affidavit and was re-examined, claiming unknown assailants committed the crime in the dark.

Of the eight appellants, only Ramakant survived to pursue the appeal.

1. Whether the subsequent retraction and contradictory testimony of an injured eye-witness (PW-2), after being recalled following an affidavit, invalidates the prosecution's case.

2. Whether a member of an unlawful assembly can be held vicariously liable under Section 149 IPC for murder if the assembly temporarily split into groups of less than five to chase different victims.

3. Whether motive is a relevant inquiry when there is direct, dependable ocular evidence.

Section 149 of the IPC regarding vicarious liability of members of an unlawful assembly.

State of M.P. v. Badri Yadav (2006) which prohibits juxtaposing prosecution witnesses as defence witnesses through affidavits.

Yakub Ismailbhai Patel v. State of Gujarat (2004) regarding the rejection of retracted testimonies by suborned witnesses.

Mizaji v. State of U.P. (1958) and Lalji v. State of U.P. (1989), establishing that common object is gathered from conduct and weapons, and continues even if the assembly splits during pursuit.

Pruthiviraj Jayantibhai Vanol v. Dinesh Dayabhai Vala (2022) stating ocular evidence prevails over minor medical discrepancies.

The Court found the ocular testimony of PW-1 and PW-3 consistent and natural, corroborated by medical reports showing injuries from sharp and blunt weapons matching the accused’s arms.

Regarding PW-2’s retraction, the Court held the trial judge’s procedure of examining her as "DW-1/PW-2" was legally flawed, citing Badri Yadav to show that a prosecution witness cannot be transformed into a defence witness to defeat justice.

Substantively, the Court noted PW-2 was a vulnerable, poor widow likely suborned by the resourceful accused.

Regarding Section 149, the Court reasoned that the "unlawful assembly" never dissolved; the split into two factions was merely a tactical response to victims fleeing in different directions to ensure the "common object"—the murder of Shesh Bahadur—was fulfilled.

Ramakant, though only wielding a lathi and chasing a different victim (PW-1), was liable because he acted as "reserve force" to prevent interference with the murder.

The High Court dismissed the appeal and upheld the conviction of Ramakant under Sections 302/149, 323/149, and 324/149 IPC, sentencing him to life imprisonment and ordered the appellant to surrender within four weeks to serve his sentence.