Section 149 IPC liability requires proof of a shared unlawful common object beyond reasonable doubt.

The prosecution arose from a village altercation allegedly triggered by a dispute concerning a tempo and a rickshaw, with the prosecution also alleging an underlying dispute relating to the deceased’s daughter’s relationship with the accused’s son.

Eleven accused were tried for offences including Sections 147, 148, 149, 302, 307, 324, 323, 504, 506(2) and 337 of the IPC and Section 135 of the Gujarat Police Act.

The Sessions Court convicted accused No. 1, Haribhai Thakarsibhai, and accused No. 2, Vasantben Haribhai Babar, principally under Section 304 Part I IPC, along with Sections 326 and 324 IPC, sentencing Haribhai to ten years’ rigorous imprisonment and Vasantben to seven years’ rigorous imprisonment; the sentences were directed to run concurrently.

Haribhai and Vasantben challenged their convictions in Criminal Appeal No. 527 of 2014. The State appealed against the acquittal of the accused under Section 302 IPC in Criminal Appeal No. 907 of 2014. The complainant sought enhancement of sentence in Criminal Appeal No. 582 of 2014 and challenged the acquittal of accused Nos. 3 to 11 in Criminal Appeal No. 1216 of 2014. The State separately challenged the acquittal of certain accused in Criminal Appeal No. 1051 of 2014.

The High Court noted that the deceased had suffered two head injuries attributed to a hoe and a spade. Medical evidence indicated that the injuries were consistent with a hoe but not with a spade. Further, the injured witnesses’ histories before the doctors referred to weapons such as swords, knives, pipes and sticks, but not a spade.

The Sessions Court had also found that the complainant, deceased and accompanying witnesses were the aggressors and that Haribhai and Vasantben had acted in self-defence during the altercation.

Whether the conviction of Haribhai and Vasantben under Section 304 Part I IPC and the related convictions under Sections 326 and 324 IPC were sustainable on the evidence on record?

Whether Vasantben could be held liable for causing the deceased’s head injury when the medical evidence did not support the use of a spade attributed to her?

Whether the acts attributed to Haribhai constituted murder under Section 302 IPC, warranting enhancement of conviction and sentence?

Whether accused Nos. 3 to 11 could be convicted with the aid of Section 149 IPC despite the alleged discrepancies, suppression of the genesis of the incident and failure to establish their specific roles or common object?

Whether the acquittal of the accused in the cross-case, including accused Nos. 2, 3 and 6, warranted appellate interference?

The Court applied Sections 304, 302, 324, 326 and 149 of the IPC. Section 304 governs culpable homicide not amounting to murder, while Section 302 concerns murder; the Court assessed the nature of the assault, the existence of intention and the plea of self-defence in determining the appropriate conviction.

Section 149 IPC requires proof that the accused were members of an unlawful assembly sharing a common object, or knew that the offence was likely to be committed in prosecution of that object; mere presence or association is insufficient.

Relying on Waman v. State of Maharashtra, (2011) 7 SCC 295, and Dani Singh v. State of Bihar, (2004) 13 SCC 203, the Court held that common object must be established from the surrounding circumstances, weapons, conduct and proved participation, and that mere presence does not attract Section 149.

Under Chandrappa v. State of Karnataka, (2007) 4 SCC 415, an appellate court may fully reappreciate evidence in an appeal against acquittal, but must bear in mind the strengthened or “double” presumption of innocence and should not interfere where two reasonable conclusions are possible.

The Court also applied the principle that medical evidence and contemporaneous histories may be used to test the reliability and consistency of eyewitness attribution.

The Court accepted the finding that the complainant, deceased and accompanying witnesses had initiated the confrontation and were the aggressors, and that Haribhai’s use of a hoe occurred in the course of defending himself during the commotion.

Since the injury to the deceased was medically compatible with a hoe, Haribhai’s role was sufficiently established.

However, the allegation that Vasantben had used a spade was not corroborated: the post-mortem doctor stated that the injuries could not have been caused by a spade, and none of the injured witnesses mentioned a spade in the medical histories.

Consequently, the conviction against Vasantben could not safely be sustained.

As regards Haribhai, the Court held that the circumstances, including the aggression of the complainant’s side and the defensive context, did not establish the requisite intention for murder under Section 302 IPC.

The conviction and sentence imposed by the Sessions Court were therefore not enhanced, notwithstanding the judgment’s reference to culpable homicide under Section 304 Part II while the original conviction was recorded under Section 304 Part I.

The Court further declined to invoke Section 149 against accused Nos. 3 to 11 because their common object, specific participation and knowledge of the likelihood of the fatal act were not proved.

The prosecution evidence contained material inconsistencies regarding the weapons and roles of the accused, and the genesis of the incident had been suppressed or inadequately explained.

Applying the restrictive approach required in an appeal against acquittal, the Court also found no basis to disturb the acquittals in the cross-case, particularly since the alleged injuries and use of chilli powder were not satisfactorily established.

The conviction and sentence of Haribhai were upheld, and the appeals seeking his conviction under Section 302 IPC or enhancement of sentence—Criminal Appeal Nos. 582 and 907 of 2014—were dismissed.

Criminal Appeal No. 1216 of 2014, seeking conviction of accused Nos. 3 to 11, and Criminal Appeal No. 1051 of 2014, challenging acquittals in the cross-case, were also dismissed.

The Registry was directed to return the record and proceedings to the concerned trial court.