Co-Accused Can't Be Implicated U/S 149 IPC If There Is No Meeting Of Mind Concerning Any Common Object: Allahabad HC

For context, Section 149 IPC makes every person who is a member of unlawful assembly at the time of committing the offence guilty of that offence.

A division bench of Justice Siddhartha Varma and Justice Ram Manohar Narayan Mishra observed thus while allowing appeals filed by three accused challenging their conviction by trial court in 1986 under Section 302 read with Section 149 IPC and Sections 148 IPC and 147 IPC.

The case in brief

Essentially, on 6^th May 1983, an incident occurred where the victim (Gopi Krishna Gupta) was shot at his shop allegedly by seven accused persons.

His son lodged an FIR related to the incident, wherein he accused Gorelal, Sheo Ram, Shatrughan Singh, Ompal Singh, Rajendra Singh, Narendra Singh, and Shiv Singh (who was allegedly unarmed) of attacking his father (Gopi Krishna).

In the FIR, it was alleged that Accused-Gorelal fired the first shot, followed by indiscriminate firing from the other accused. Though victim Gopi's injury was recorded, he was still alive at the time of the loading of the FIR and in his dying declaration (recorded by a Doctor), he identified accused Gorelal as the one who shot at him.

Following an investigation, charges were framed against the accused under the abovementioned Sections of IPC. A separate charge was framed against accused Shiv Singh, including the murder of another victim, Ram Gopal, who was allegedly found near the place of the incident.

After the trial, all seven accused were convicted of Gopi Krishna's murder under Section 302, read with Section 149 IPC and sentenced to rigorous imprisonment. They were also convicted under Section 148 IPC for armed rioting.

However, all the seven accused were acquitted of charges pertaining to the murder of Ram Gopal.

Aggrieved by the trial court's judgment, the accused appellants moved to the High Court. During the pendency of their appeals, accused Gorelal, Shatrughan Singh, Rajendra Singh and Narendra Singh died, and thus, their appeals were abated.

In essence, the appeal was heard for the appellants, namely, Sheoram Singh, Shiv Singh and Ompal Singh.

The counsel for the appellants made the following submissions while challenging the judgement and order dated 24.3.1986 passed by the Additional Sessions Judge:

• In his dying declaration, victim Gopi only mentioned that accused Gorelal was present at the spot and had fired upon him and hence, only Gorelal could be held responsible for the death of the deceased while the other co-accused persons namely Shiv Ram Singh, Shatrughan Singh, Rajendra Singh, Narendra Singh, Ompal Singh and Shiv Singh were not even present at the spot.
• It was an absolute case of false implication of all the other co-accused persons other than Gorelal.
• The first informant (son of the injured/victim) was not there at the spot at all and after he had got the information about the fact that Gorelal was made an accused by the deceased in his dying declaration, and was held responsible of having had shot on him, he had come up with the whole story implicating the other accused persons just because their names were known to the first informant and they were inimical to him and also his father.
• If the injury report and the postmortem reports are seen, it would become evident that all the injuries were firearm injuries, which were three in number and were caused by one firearm, and this proves that co-accused persons had not at all fired upon the injured/deceased.
• The co-accused persons could not be said to have had any common object, as is defined under Section 141 of IPC, to be with Gorelal. In this regard, the Judgment of the Apex Court in Vinubhai Ranchhodbhai Patel vs. Rajivbhai Dudabhai Patel & Others 2018 was relied upon wherein it was held that when a conviction is to be done under Section 149 of IPC, the identification of common object is essential and when the common object is not identified, the accused cannot be, in any manner, be convicted under the substantive offence with the assistance of Section 149 of IPC.

On the other hand, AGA, appearing for the state, submitted that even if the dying declaration had mentioned just one name, it mattered little as there was definite evidence that the other accused persons were involved in the crime.

Against the backdrop of these submissions, the Court, at the outset, noted that the prosecution case becomes weak when one looks into the dying declaration as the deceased had mentioned that the accused-Gorelal alone was present at the place and he had fired upon the injured deceased.

“However, even in the dying declaration, the injured deceased had mentioned that there was no enmity between Gorelal and the injured/deceased. We find that the prosecution realizing fully well that its case would become weak had not tried to prove the dying declaration. It was also not exhibited in the trial…”, the Court noted.

The Court also observed that the names of the other co-accused, which never found a place in the dying declaration, were mentioned by the PW-1, the first informant only to settle scores with them.

“It appears that the P.W. -1 was inimical to the other co-accused persons and, therefore, while he was lodging the first information report with regard to the murder of his father, he had mentioned those names as well,” the Court noted.

The Court also took into account the fact that the firearm injuries were only of one size, and if the other co-accused had also fired, then there would have been injuries of different sizes, and, therefore, the court added, this also falsified the case of the prosecution.

In view of this, the Court, while allowing the appeal, stressed that when the other co-accused were not there at the spot and when there was no meeting of mind concerning any common object, then the various co-accused persons could not be implicated under Section 149 IPC.

Appearances

Counsel for the appellants: Senior Advocate VP Srivastava, assisted by Advocates Jitendra Singh, Rajiv Nayan Singh and Nija Srivastava

Counsel for Respondent: AGA Amit Sinha, assisted by Advocate Mayuri Mehrotra

Case title - Gorelal Alias Shyam Narain And Others vs. State of U.P. 2024 LiveLaw (AB) 561

Case citation: 2024 LiveLaw (AB) 561

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