# Ram Palat & Anr v. State of U.P

- **Citation:** (2026) 4 ILRA 205
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-24
- **Case number:** Criminal Appeal No. 1158 of 1989
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-palat-anr-v-state-of-u-p-54905
- **Pages:** 15

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4 All. Ram Palat & Anr. Vs. State of U.P.
205
under Section 61 (2) to Bharatiya Nyaya Sanhita (BNS) read with Section 7 Prevention of
Corruption Act, 1988, Police Station- CBI/ACB, Lucknow, whereby the applications filed by the
applicants seeking their discharge, have been rejected and in the orders dated 21.02.2026 passed by
the trial Court framing charges against them. The petitions lack merits and are dismissed.
----------
(2026) 4 ILRA 205
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.04.2026

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 1158 of 1989

Ram Palat & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Issue for Consideration
Matter pertains to whether, after acquittal of four accused out of the named members of the alleged unlawful
assembly and the trial having ultimately resulted in conviction of only two accused, conviction for the offence
under S. 323/149 I.P.C. could legally be sustained with the aid of S. 149 I.P.C., which requires an unlawful
assembly consisting of five or more persons. (Paras 25-33)

Headnotes
Indian Penal Code, 1860 - Ss.141 and 149 - Unlawful Assembly - Essential requirement -
Membership must be five or more persons - S. 149 creates vicarious or constructive criminal
liability only when offence is committed by a member of an unlawful assembly - For constituting
an unlawful assembly one of the main and important ingredients is that the assembly should
consist of five or more persons. (Paras 27-29)
Indian Penal Code, 1860 - Ss.141 and 149 - Applicability of S. 149 - Where prosecution case
names five or more persons as members of unlawful assembly and evidence is confined to those
named persons - If acquittal of two or more accused reduces the number below five, S. 149
cannot be invoked unless evidence establishes participation of other unnamed or unidentified
persons constituting the unlawful assembly. (Paras 30-31)
Indian Penal Code, 1860 - Ss.323/149, 141 and 149 - Conviction with aid of S. 149 - Trial of
seven accused - One accused died during trial - Four accused acquitted - Remaining two accused
acquitted of charges under Ss.147, 307/149 and 379 I.P.C. but convicted under S. 323/149
I.P.C. - Acquittal of four accused attained finality - No case of unnamed or unidentified members
of unlawful assembly - Conviction under S. 323/149 I.P.C. unsustainable. (Paras 25-33)
Criminal Law - Acquittal of co-accused - Effect on charge under S. 149 I.P.C. - Acquittal of four
accused rendered S. 149 I.P.C. inapplicable in the case as only two accused were convicted -
Impugned judgment and order convicting accused with aid of S. 149 I.P.C. liable to be set aside.
(Paras 32-33)
Criminal Appeal - Conviction and sentence under S. 323/149 I.P.C. - Legality - Since only two
accused stood convicted and no circumstance existed warranting application of S. 149 I.P.C.,
conviction and sentence held totally illegal - Appeal allowed - Surviving appellant acquitted.
(Paras 33-35)
Held: S. 149 I.P.C. applies only where an unlawful assembly consists of five or more persons - In the present
case, out of seven named accused, one died during trial and four were acquitted, leaving only two convicted
206 INDIAN LAW REPORTS ALLAHABAD SERIES
accused - Since no unnamed or unidentified persons were shown to be members of the assembly, S. 149
I.P.C. was inapplicable - Consequently, the conviction under S. 323/149 I.P.C. was illegal and was set aside -
The appeal was allowed and the surviving appellant was acquitted. (Paras 26-35) (E-7)

Case Law Cited
Mohan Singh v. State of Punjab, 1962 SCC OnLine SC 82; Dalip Singh v. State of Punjab, (1953) 2 SCC
36; Bharwad Mepa Dana v. State of Bombay, (1960) 2 SCR 172; Kartar Singh v. State of Punjab, AIR
1961 SC 1787; Subran v. State of Kerala, (1993) 3 SCC 32; Mahendra v. State of M.P., 2022 SCC
OnLine SC 1348.

List of Acts
Indian Penal Code, 1860; Code of Criminal Procedure, 1973

List of Keywords
Unlawful assembly; common object; S. 149 I.P.C.; S. 141 I.P.C.; vicarious criminal liability; constructive
criminal liability; acquittal of co-accused; membership must be five or more; named accused; unidentified
persons; conviction under S. 323/149 I.P.C.; applicability of S. 149 I.P.C.; unlawful assembly consisted of five
or more persons; acquittal rendered S. 149 I.P.C. inapplicable; appeal allowed; acquittal.

Case Arising From
APPELLATE JURISDICTION: Criminal Appeal arising from the judgment and order dated 03.05.1989 passed by
the Vth Additional Sessions Judge, Basti in Session Trial No. 418 of 1986, whereby the accused-appellants
were convicted and sentenced under S. 323/149 I.P.C. while being acquitted of charges under Ss.147,
307/149 and 379 I.P.C.

Appearances for Parties
Advs. for the Appellant:
Sri Pradeep Narayan Pandey.
Advs. for the Respondents:
Sri Ajay Singh, learned A.G.A.-I for the State.

(Delivered by Hon'ble Samit Gopal, J.)

1. This appeal was initially preferred by Ram Palat/appellant no. 1 and Bigranchhu/appellant
no. 2 against the judgment and order dated 3.5.1989 passed by Vth Additional Sessions Judge,
Basti in Session Trial No. 418 of 1986, State of U.P. vs. Ram Palat and 6 others, by which the
accused/appellants have been convicted and sentenced for the offences under Sections 323/149
I.P.C. to six months rigorous imprisonment and a fine of Rs.500.00 each and in default of payment
of fine, they have been directed to undergo further one month imprisonment.

2. During pendency of this appeal the appellant no. 1/Ram Palat died and thus vide order dated
13.09.2022 passed by a co-ordinate Bench of this Court his appeal stood abated. The same thus
survived only for the appellant no. 2/Bigranchhu.

3. The case in the present matter was committed to the Court of Sessions for accused Ram
Palat,cv Paras Nath, Raja Ram, Suresh, Bigranchoo, Mata Badal and Bigrail @ Janardan under
Sections 147, 307/149 and 379 I.P.C. During pendency of trial, accused Raja Ram died and thus his
trial stood abated (stated in para-2 of the impugned judgement and order).
4 All. Ram Palat & Anr. Vs. State of U.P.
207

4. Ram Palat, Paras Nath, Suresh, Bigranchoo, Mata Badal and Bigrail @ Janardan were tried
wherein Paras Nath, Suresh, Mata Badal, Bigrail @ Janardan were acquitted of the charges levelled
against them for offences under Sections 147, 307/149, 379 I.P.C. The accused Ram Palat and
Bigranchoo were also charged for offences under Sections 147, 307/149, 379 I.P.C. and were
acquitted of the said charges but were convicted for the offence under Sections 323/149 I.P.C. and
sentenced therein as stated above.

5. An application dated 13.3.1987 was given by Ramdas Upadhyay to S.H.O. Police Station
Kotwali, District Basti of which Kapil Muni Pandey was the scribe, alleging therein that his son
Raghuvansh Upadhyay was Manager of Dayanand Vidyalay Malviya Road, Basti. He had a plot of
land in Gidhi (Jigna), near petrol pump and besides his land, the land of Ram Palat was situated.
With regards to dispute between him and Ram Palat regarding boundary of the land, his son
Raghuvansh Upadhyay on 13.3.1986 at about 07.00 a.m. went to the land wherein on seeing the
informant and his son, the accused armed with lathi and danda reached there and with an intention
to murder his son on the exhortation of Ram Palat that how could he dare to purchase the land
besides his land and he may be murdered, all the accused armed with lathi and danda assaulted
him. The informant tried to save his son. The accused also assaulted the informant. On shouts by
the informant and his son, Ramchandar, Virendra Bahadur Pandey, Hasnain and many other people
reached there and saw the incident. Raghuvansh Upadhyay his son received serious injuries on his
head, hands and legs and he also received injury. The accused have snatched and taken away a
Reiko wrist watch, one gold ring of 8 ana, one silver ring with stone of 6 ana, Rs.735.00 kept in the
pocket, one rexine bag containing papers of the land and papers of motorcycle, driving license,
from the place one sofaset of bamboo, one big dari, two buckets have been taken away by them.
His report be lodged and action be taken. The said application is marked as Ext. Ka-1 to the
records.

6. On the basis of the said application a First Information Report was lodged on 13.03.1986 at
about 8.30 a.m. as Case Crime No. 115 of 1986, under Section 395 I.P.C., Police Station- Kotwali,
District Basti. The Chik F.I.R. is Ext. Ka-3 to the records.

7. Raghuvansh Upadhyay was medically examined on 13.03.1986 at 09.00 a.m. by Dr. A.K.
Srivastava, Medical Officer of District Hospital, Basti and was found to have received 8 injuries
which are as under: -

"1. Lacerated wound 4 cm x 1.5 cm x bone deep on the left side forehead 5cm above
medial end of left eyebrow with traumatic swelling 10cm x 9cm on the middle of the forehead
including front of head 3cm above the root of nose. Margins are irregular, bleeding present. Kept
U.O. Adv. X-ray.

2. Lacerated wound 4cm x 1.5 cm x muscle deep on the right palm in between thumb and
index finger, margins are irregular, bleeding present. Kept U.O. Adv. X-ray.

3. Contused swelling 15cm x all around the lower front of left forearm including front of
wrist joint 18 cm below elbow joint. Kept U.O. Adv. X-ray. Red in colour.

4. Lacerated wound 1-1/2 cm x 1.5 cm skin deep on the palmer aspect on left palm 1cm
above the root of index finger, margins are irregular, bleeding present.
208 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Abraded contusion 4-1/2 cm x 3 cm on the front of left upper arm 2cm above elbow
joint, read in colour.

6. Contusion 11cm x 3 cm on the outer aspect of right thigh 28cm above knee joint, red in
colour.

7. Contusion 13cm x 2cm on the outer aspect of left thigh 18 cm above knee joint, red in
colour.

8. Traumatic swelling 8cm x 7cm on the dorsum of left foot 4cm in front of ankle joint."

The doctor opined the injuries to be simple except for injury no. 1 to 3 which were kept
under observation till X-ray. They were opined to be caused by hard and blunt object and duration
was fresh. The injury report is Ext. Ka-2 to the records.

8. Site plan of the place of occurrence was prepared on 13.03.1986 the same is Ext. Ka-6 to
the records.

9. One kurta and payjama and one jacket (sadri) of Raghuvansh Upadhyay stated to be blood
stained, were taken into possession by the police on 29.03.1986. The recovery memo is Ext. Ka-9
to the records.

10. X-ray examination of Raghuvansh Upadhyay was done on 14.3.1986 and X-ray report was
prepared by Dr. G.N. Prasad, Radiologist, District Hospital, Basti, who did not find any fracture on
the right forearm but found a chip fracture of second metacarpal of left hand. Skull was not found
to have received any fracture. Parts of body x - rayed were skull, left hand and right forearm. The
said X-ray report is Ext. Ka-11 to the records.

11. Investigation concluded and a charge sheet no.85, dated 7.5.1986 was submitted under
Sections 147, 325, 308, 379 I.P.C. against Ram Palat, Paras Nath, Raja Ram, Suresh, Bigranchoo,
Mata Bada, Bigrail @ Janardan. The same is Ext. Ka-10 to the records.

12. Vide order dated 17.10.1987 the Special Judge, Basti, framed charge against all the seven
accused under Sections 147, 307/149, 379 I.P.C. The accused were read and explained about the
charge who pleaded not guilty and claimed to be tried.

13. The trial in the matter started in which Ramdas, the first informant was examined as P.W.-
1, Raghuvansh Upadhyay the injured was examined as P.W.-2, Hasnain an alleged eye witness and
driver of P.W.-1 and P.W.-2, was examined as P.W.-3, Dr. A.K. Srivastava, Medical Officer, who
conducted medical examination of Raghuvansh, was examined as P.W.-4, Kapil Dev Singh Head
Constable who transcribed the Chik F.I.R. and prepared corresponding G.D. was examined as
P.W.-5, Shrinath Sub-Inspector the Investigating Officer of the matter was examined as P.W.-6
who concluded it and filed a charge sheet.

14. The accused in the statement recorded under Section 313 Cr.P.C. denied the prosecution
case and stated the prosecution case to be false. They stated of their implication in the matter due to
conspiracy. The situation of the plot of the informant and the accused was admitted by them. It is
stated that the informant had got forged sale deed executed for a public pond besides which the
land of the accused is situated and thus with the police the present false case has been lodged. They
4 All. Ram Palat & Anr. Vs. State of U.P.
209
stated that the accused received injuries by falling on the ground and not by assault. In defense
documents were filed. No defense evidence was led.

15. The trial court finding implication of the four accused as stated above to be false acquitted
them of charges levelled against them and further acquitted the accused/appellants also for the
charges framed against them but convicted them as aforesaid. The present appeal thus has been
filed before this Court.

16. P.W.-1 Ramdas is the first informant of the present matter. He states that his land is
situated in Gidhi near petrol pump besides which the land of Ram Palat, Paras Nath and others is
situated. There is a dispute between them with regards to boundary of the land. On the day of the
incident at about 7.00 a.m. Lekhpal and others were called for measurements for which he and his
son Raghuvansh and driver Hasnain were waiting for the said officers. The disputed land is
surrounded by wall on three sides. On that day for the officers he had arranged a sofa-set, one dari,
buckets etc. at the field. Ram Palat and Paras Nath have their house and hotel on one side of the
land which is situated at a distance of about 10-12 kathha. When they reached the land, Ram Palat
and his son Raja Ram, Paras Nath, Bigranchoo came there and immediately Ram Palat exhorted as
to how they could purchase the land besides his land, after which they ran to assault Raghuvansh.
They then ran towards the basti. After running about 2-4 kathha, Mata Badal, Suresh and Janardan
came from the front and surrounded them and assaulted them with lathi and danda. His son was
being assaulted. He ran to save him on which the accused caught hold of him and assaulted him
with 2 fist blows and told him to keep away or else he would also be assaulted. His driver was also
there. On shouts by him and his driver, Ramchandar and many other people of the village came
there and saw the accused assaulting. During assault on his son, Bigranchoo took away his two
rings (one gold and one silver), wrist watch, a bag containing papers of vehicle, money from the
pocket of jacket and papers of land. From the disputed land they took away a sofa-set, dari, bucket,
lota etc. When the accused ran away, then Kapil Muni came there to whom the informant stated
about the incident and got an application written on which he signed and gave it to the police for
lodging a report, the same was proved by him as Ext. Ka-1 to the records. His son was medically
examined but since he did not receive any visible physical injury, he was not medically examined.

17. P.W.-2 Raghuvansh Upadhyay is the injured of the matter. He states that he had purchased
land besides the land of Ram Palat in the name of his wife Smt. Girja Devi and sister Smt. Kamal
Upadhyay. The land was occupied by Ram Palat and others and thus he was getting wall
constructed around it. The accused stated that their land falls in the said area and had stopped
construction of wall. On 09.03.1986 Ram Palat and others had broken the wall. Its report was given
at the Police Station Kotwali. He had requested Lekhpal and Circle Officer to get the land
measured and they had stated to come on 13.03.1986 for it. On 10.1.1986 he got an order on the
basis of the sale deed for getting the land measured. The same is being filed by him. On the day of
incident at about 7.00 a.m. he was waiting for Lekhpal and other officers along with his father and
driver Hasnain. At the said land a bucket, sofa-set, dari etc. were arranged for officers. In the
meantime, the accused Ram Palat, Paras Nath, Raja Ram and Bigranchoo reached there and Ram
Palat exhorted as to how they could dare to purchase the land besides his land and they ran to
assault him on which he ran towards Kotwali, Basti. After running about 30-35 steps the accused
Mata Badal, Bigrail @ Janardan and Suresh armed with lathi and danda came from the hotel of
210 INDIAN LAW REPORTS ALLAHABAD SERIES
Ram Palat and surrounded him and assaulted him. In the meantime, the other accused came from
behind and assaulted him with lathi and danda. His father ran to save him who was also assaulted
with fist blows. Hasnain, Virendra Bahadur Pandey and many other persons had come there and
saw the incident and intervened. Bigranchoo took away his rings, wrist watch, bag and money.
They also took away the items kept in the field. He received many injuries. Kapil Muni came there
who transcribed the application on the dictation of his father which was given at the police station.
He was taken by the police for medical examination. He remained admitted in the hospital for
about 5-6 days. He is filing papers of sale deed of the land.

18. P.W.-3 Hasnain is the driver of P.W.1 and P.W.2 and an alleged eye witness. He states of
being present at the place of occurrence and states of the incident as that of P.W.-1 and P.W.-2.

19. P.W.-4 A.K. Srivastava is Medical Officer of District Hospital, Basti. He medically
examined Raghuvansh Upadhyay and prepared the injury report, the details of which have already
been stated above. He proves the said injury report as Ext. Ka-2 to the records. He states that the
injuries could have been caused on 13.03.1986 at about 07.00 a.m. In his cross-examination he
states that except for the injury no. 1 all other injuries were on non-vital parts of the body. The
injury no. 1 was kept under observation and referred for X-ray but he does not know any further
regarding it.

20. P.W.-5 Kapil Dev Singh is the Head Constable. He states of transcribing the Chik F.I.R.
on the basis of written report given at the Police Station and also prepared the corresponding G.D.
He proves the same as Ext. Ka-3 and Ext. Ka-4 respectively.

21. P.W.-6 Srinath, Sub-Inspector, is the Investigating Officer of the matter. He took up
investigation and sent Raghuvansh Upadhyay for medical examination. He prepared site plan,
recorded statements of the witnesses, took the clothes of the injured Raghuvansh Upadhyay in his
possession and then filed a charge sheet against 7 accused which is Ext. Ka-10 to the records.

22. Heard Sri Pradeep Narayan Pandey, learned counsel for the appellant no. 2-Bighanchoo,
Sri Ajay Singh, learned A.G.A.-I for the State and perused the records. The trial court records have
been received, which are tagged with the present appeal which have also been perused.

23. Learned counsel for the appellant no. 2/Bigranchoo submitted as under: -

(A) The appellant has been falsely implicated in the present case.

(B) The appellants although were charged for offences under Sections 147, 307/149 and
379 I.P.C. but they were acquitted of the said charges and instead convicted for offence under
Section 323/149 I.P.C.

(C) 04 other accused namely Paras Nath, Suresh, Mata Badal and Bigrail@Janardan who
were also tried with the appellants for the charges under Sections 147, 307/149, 379 I.P.C, were
acquitted of the said charges levelled against them.

(D) Acquittal of the said four accused and also of the accused-appellants for offences
under Sections 147, 307/149, 379 I.P.C. is not under challenge and the same has attained finality.
4 All. Ram Palat & Anr. Vs. State of U.P.
211

(E) The present appeal has been preferred against conviction and sentence of the
appellants for offence under Section 323/149 I.P.C.

(F) Conviction of the accused-appellants with the aid of Section 149 I.P.C. is totally
illegal inasmuch as unlawful assembly must consist of minimum number of five persons for
conviction with the aid of Section 149 I.P.C. In the present matter four accused have been acquitted
and only two accused-appellants have been convicted under Section 323 I.P.C. with the aid of
Section 149 I.P.C. which is illegal and they could not have been convicted with the aid of Section
149 I.P.C. since only two accused have been convicted.

(G) Conviction and sentence is illegal and cannot be sustained since it is with the aid of
Section 149 I.P.C. and only two accused have been convicted and sentenced.

(H) The appeal be allowed and conviction and sentence of the surviving accusedappellant no. 2 Bigranchoo be set aside.

24. Learned A.G.A., per contra, opposed the submissions and the appeal and submitted as
under: -

(A) The accused-appellants are named in the F.I.R. and also in the evidence as collected
during investigation.

(B) One person namely Raghuvansh Upadhyay is an injured of the incident who has
received injuries and thus his presence at the place of occurrence cannot be doubted.

(C) The accused are of the same village and previously known persons and thus there was
no chance of false implication.

(D) Trial in the matter was of 7 accused out of which one Raja Ram died during
pendency of the trial but as a matter of fact there were 7 accused in all and thus implication of
Section 149 I.P.C. is proper.

(E) Trial court finding evidence to be beyond reasonable doubt in so far as it relates to the
accused-appellants, convicted them and sentenced them as above.

(F) The appellants have been assigned specific role in the matter and even injuries as
sustained could not have been false, fabricated or self - sustained injuries and thus conviction and
sentence is well founded without any error.

(G) The present appeal is devoid of any merit and deserves to be dismissed.

25. After having heard learned counsels for the parties and perusing the records, the fact that
stems out in the matter are that 7 accused were committed to the Court of Sessions for offences
under Sections 147, 307/149, 379 I.P.C., out of 7 accused one accused Raja Ram died and thus his
trial stood abated. Charges were framed vide order dated 17.10.1987 against 7 accused for offences
under Sections 147, 307/149, 379 I.P.C. Thus after death of one accused during trial 6 (six) accused
were tried for the said charges. Out of the said 6 accused, 4 accused namely Paras Nath, Suresh,
Mata Bada, Bigrail@Janardan were acquitted of the charge levelled against them for offences
under Sections 147, 307/149, 379 I.P.C. and two accused namely Ram Palat and Bigranchoo (who
were the appellants before this Court) were also acquitted of the charges levelled against them for
offences under Sections 147, 307/149, 379 I.P.C. but were convicted for offence under Sections
323/149 I.P.C. and sentenced for it.
212 INDIAN LAW REPORTS ALLAHABAD SERIES

26. For the purpose of discussions, it would be relevant to state herein that out of the said two
convicted accused, who had preferred appeal before this Court, one of the appellant being Ram
Palat (appellant no. 1) died during pendency of this appeal before this Court and thus his appeal
stood abated vide order dated 13.09.2022. In so far as acquittal of the accused for charges under
Sections 147, 307/34, 379 I.P.C. is concerned, the same attained finality. Acquittal of 4 accused
namely Paras Nath, Suresh, Mata Bada, Bigrail @ Janardan, is not under challenge. Even acquittal
of the accused-appellants under the said charges is also not under challenge. The moot question
thus which arises before this Court is as to whether only 02 (two) accused can be convicted by a
court for an offence with the aid of Section 149 I.P.C. The prosecution case in the present matter is
that seven (7) named persons were members of an unlawful assembly out of whom one (1) died
during trial and then six (6) persons were tried out of whom four (4) have been acquitted and thus it
raises a question as to whether after acquittal of four (4) persons it leaves open to the prosecution to
rely upon Section 149 I.P.C. against the appellants (now only one (1) is surviving amongst the two
(2)).

27. At this stage it would be relevant to revert back to Section 149 I.P.C. which deals with an
offence, if committed by any member of an unlawful assembly in prosecution of common object of
that assembly, or that such members of the assembly knew to be likely to be committed in the
prosecution of that object wherein every person who at the time of committing of that offence, is a
member of the same assembly, is guilty of that offence. Section 149 I.P.C. reads as under:-

"149. Every member of unlawful assembly guilty of offence committed in prosecution
of common object. If an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the members of that assembly knew
to be likely to be committed in prosecution of that object, every person who, at the time of the
committing of that offence, is a member of the same assembly, is guilty of that offence."

28. Unlawful assembly as referred to in Section 149 I.P.C. is defined in Section 141 I.P.C.
which reads as under:-

"141. Unlawful assembly. - An assembly of five or more persons is designated an
'unlawful assembly', if the common object of the persons composing that assembly is-

First.-To overawe by criminal force, or show of criminal force, 11[the Central or any
State Government or Parliament or the Legislature of any State], or any public servant in the
exercise of the lawful power of such public servant; or

Second.-To resist the execution of any law, or of any legal process; or

Third.-To commit any mischief or criminal trespass, or other offence; or

Fourth.-By means of criminal force, or show of criminal force, to any person, to take or obtain
possession of any property, or to deprive any person of the enjoyment of a right of way, or of the
use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any
right or supposed right; or

Fifth.-By means of criminal force, or show of criminal force, to compel any person to do what
he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation.-An assembly which was not unlawful when it assembled, may subsequently
become an unlawful assembly."
4 All. Ram Palat & Anr. Vs. State of U.P.
213

29. Thus for constituting an unlawful assembly one of the main and important ingredient is
that the said assembly should consist of 5 (five) or more persons.

30. The applicability of Section 149 I.P.C. has been discussed and explained by the Apex
Court in the following cases:

A. Mohan Singh v. State of Punjab, 1962 SCC OnLine SC 82 (a five Judge Bench of
the Apex Court):-

"8. The true legal position in regard to the essential ingredients of an offence specified by
Section 149 are not in doubt. Section 149 prescribes for vicarious or constructive criminal liability
for all members of an unlawful assembly where an offence is committed by any member of such an
unlawful assembly in prosecution of the common object of that assembly or such as the members
of that assembly knew to be likely to be committed in prosecution of that object. It would thus be
noticed that one of the essential ingredients of Section 149 is that the offence must have been
committed by any member of an unlawful assembly, and Section 141 makes it clear that it is only
where five or more persons constituted an assembly that an unlawful assembly is born, provided, of
course, the other requirements of the said section as to the common object of the persons
composing that assembly are satisfied. In other words, it is an essential condition of an unlawful
assembly that its membership must be five or more. The argument, therefore, is that as soon as the
two Piara Singhs were acquitted, the membership of the assembly was reduced from five to three
and that made Section 141 inapplicable which inevitably leads to the result that Section 149 cannot
be invoked against the appellants. In our opinion, on the facts of this case, this argument has to be
upheld. We have already observed that the point raised by the appellants has to be dealt with on the
assumption that only five persons were named in the charge as persons composing the unlawful
assembly and evidence led in the course of the trial is confined only to the said five persons. If that
be so, as soon as two of the five named persons are acquitted, the assembly must be deemed to have
been composed of only three persons and that clearly cannot be regarded as an unlawful assembly.

9. In dealing with the question as to the applicability of Section 149 in such cases, it is
necessary to bear in mind the several categories of cases which come before the criminal courts for
their decision. If five or more persons are named in the charge as composing an unlawful assembly
and evidence adduced by the prosecution proves that charge against all of them, that is a very clear
case where Section 149 can be invoked. It is, however, not necessary that five or more persons
must be convicted before a charge under Section 149 can be successfully brought home to any
members of the unlawful assembly. It may be that less than five persons may be charged and
convicted under Section 302/149 if the charge is that the persons before the Court along with others
named constituted an unlawful assembly; the other persons so named may not be available for trial
along with their companions for the reason, for instance, that they have absconded. In such a case,
the fact that less than five persons are before the Court does not make Section 149 inapplicable for
the simple reason that both the charge and the evidence seek to prove that the persons before the
Court and others number more than five in all and as such, they together constitute an unlawful
assembly. Therefore, in order to bring home a charge under Section 149 it is not necessary that five
or more persons must necessarily be brought before the court and convicted. Similarly, less than
five persons may be charged under Section 149 if the prosecution case is that the persons before the
Court and others numbering in all more than five composed an unlawful assembly, these others
being persons not identified and so not named. In such a case, if evidence shows that the persons
214 INDIAN LAW REPORTS ALLAHABAD SERIES
before the Court along with unidentified and un-named assailants or members composed an
unlawful assembly, those before the Court can be convicted under Section 149 though the unnamed and un-identified persons are not traced and charged. Cases may also arise where in the
charge, the prosecution names five or more persons and alleges that they constituted an unlawful
assembly. In such cases, if both the charge and the evidence are confined to the persons named in
the charge and out of the persons so named two or more are acquitted leaving before the court less
than five persons to be tried, then Section 149 cannot be invoked. Even in such cases, it is possible
that though the charge names five or more persons as composing an unlawful assembly, evidence
may nevertheless show that the unlawful assembly consisted of some other persons as well who
were not identified and so not named. In such cases, either the trial court or even the High Court in
appeal may be able to come to the conclusion that the acquittal of some of the persons named in the
charge and tried will not necessarily displace the charge under Section 149 because along with the
two or three persons convicted were others who composed the unlawful assembly but who have not
been identified and so have not been named. In such cases, the acquittal of one or more persons
named in the charge does not affect the validity of the charge under Section 149 because on the
evidence the Court of facts is able to reach the conclusion that the persons composing the unlawful
assembly nevertheless were five or more than five. It is true that in the last category of cases, the
court will have to be very careful in reaching the said conclusion. But there is no legal bar which
prevents the court from reaching such a conclusion. The failure to refer in the charge to other
members of the unlawful assembly un-named and un-identified may conceivably raise the point as
to whether prejudice would be caused to the persons before the court by reason of the fact that the
charge did not indicate that un-named persons also were members of the unlawful assembly. But
apart from the question of such prejudice which may have to be carefully considered, there is no
legal bar preventing the Court of facts from holding that though the charge specified only five or
more persons, the unlawful assembly in fact consisted of other persons who were not named and
identified. That appears to be the true legal position in respect of the several categories of cases
which may fall to be tried when a charge under Section 149 is framed.

10. In this connection, we may refer to three representative decisions of this Court. In
Dalip Singh v. State of Punjab, (1953) 2 SCC 36 this Court has held that before Section 149 can be
applied, the Court must be satisfied that there were at least five persons sharing the common object.
It has also been held that this does not mean that five persons must always be convicted before
Section 149 can be applied. If the Judge concludes that five persons were unquestionably present
and shared the common object, though the identity of some of them is in doubt, the conviction of
the rest would be good. In that case, this Court took the view that the evidence adduced by the
prosecution did not satisfactorily prove the fact that the unlawful assembly was composed of five or
more persons, and so, Section 149 was held to be inapplicable. In other words, on facts relevant for
the purpose of applying Section 149 this case is similar to the case with which we are concerned in
the present appeal.

11. In Bharwad Mepa Dana v. State of Bombay, (1960) 2 SCR 172 this Court was
dealing with a case where twelve named persons were charged with having formed an unlawful
assembly with the common object of committing the murder of three persons. At the trial before the
Sessions Judge, seven of the named persons were acquitted and five were convicted under Section
302/149 and Section 302/34. On appeal, the High Court acquitted one of the convicted persons but
maintained the conviction and sentence passed on the rest. The validity of the said order of
conviction and sentence was challenged before this Court on several grounds, one of which was
4 All. Ram Palat & Anr. Vs. State of U.P.
215
that Section 149 became inapplicable as soon as eight out of the twelve persons named as members
of the unlawful assembly were acquitted. In rejecting this argument, this Court referred to the
finding recorded by the High Court that the unlawful assembly in question consisted of ten to
thirteen persons out of whom only four were identified and not the rest; and held that it was open to
the High Court to come to such a finding. The argument which was urged against the validity of
such finding was put alternatively in two forms. It was first contended that the prosecution case
must be confined to the charge framed against the accused persons and the charge in the Sessions
Court referred to twelve named persons as composing the unlawful assembly, and so, as soon as
eight of them were acquitted, Section 149 became inapplicable. It was also urged that in coming to
the conclusion that the unlawful assembly consisted of ten to thirteen persons, the High Court was
making out a case of a new unlawful assembly and that was not permissible in a criminal trial. Both
these arguments were repelled by this Court and it was held that there was no legal bar which
prevented the High Court from coming to the conclusion that apart from the persons who were
acquitted and excluding them, evidence adduced by the prosecution showed the presence of more
than five persons who composed the unlawful assembly. The assembly about the existence of
which the High Court has made a finding is not a new assembly but the same assembly as alleged
by the prosecution. The only difference is that according to the charge, all the members of the
assembly were alleged to be known, whereas on the evidence the High Court has reached the
conclusion that the identity of all the members of the assembly has not been established, though the
number of the members composing the assembly is definitely found to be five or more. It is on this
reasoning that this Court confirmed the conviction of the appellants under Section 302/149. Thus,
this decision illustrates how Section 149 can be applied even if two or more of the persons actually
charged are acquitted.

12. The same principle has been enunciated by this Court in Kartar Singh v. State of
Punjab, AIR 1961 SC 1787. According to this decision, it is only when the number of alleged
assailants is definite and all of them are named and the number of persons found to be proved to
have taken part in the incident is less than five, that it cannot be held that the assailants' party must
have consisted of five or more persons. It is true that having stated this position, this Court has also
observed that the fact that certain persons are named in the charge as composing an unlawful
assembly, excludes the possibility of other persons to be in the said assembly especially when there
is no occasion to think that the witnesses who named all the accused could have committed
mistakes in recognising the assailants. It is on this observation that Mr Raghubir Singh relies. We,
however, think that it would be unreasonable to read this statement as laying down an unqualified
proposition that whenever persons named in the charge are alleged to constitute an unlawful
assembly it is legally not permissible to the prosecution to prove during the trial that persons in
addition to those named in the charge also were members of the said assembly. In other words,
what this observation intends to suggest is that where persons named in the charge are alleged to
compose an unlawful assembly, the Court of facts would be slow to come to the conclusion that
persons other than those named in the charge were members of the said assembly. If, however, it
appears on evidence that persons not so named in the charge were members of the unlawful
assembly, there is no legal bar which prevents the courts from reaching that conclusion. This
position can and does arise where some of the persons composing the unlawful assembly are not
identified by the witnesses and they are not named. In fact, the decision in the case of Kartar Singh
itself shows that this Court rejected the appellants' contention that their conviction under Sections
302 and 307, read with Section 149 was invalid. Therefore, we see no inconsistency between the
216 INDIAN LAW REPORTS ALLAHABAD SERIES
observations made in this case and the earlier decisions to which we have just referred. The result is
that in the circumstances of the present case, the appellants are entitled to contend that Section 149
cannot be invoked against them."

B. Subran v. State of Kerala : (1993) 3 SCC 32:-

"8.