S.149 IPC | When Accused Is Roped In For Being Member Of Unlawful Assembly, Whether He Caused Injury Is Irrelevant : Supreme Court

The Supreme Court on September 4 upheld the judgment and order of the Allahabad High Court convicting and sentencing the appellant for murder along with rioting armed with deadly weapon. 

A bench of Justices Abhay S. Oka and Ujjal Bhuyan was hearing a criminal appeal where the appellant argued that although he had carried a country-made pistol at the crime scene, where other accused had committed murder, his pistol did not cause any injury as it was fired to frighten and flee from the crime scene. 

Rejecting his defence, the court held that since he was present at the crime scene where unlawful assembly took place with the object of murdering the deceased, the presence of the accused was enough for him to be booked for murder.

No overact has to be imputed to a particular person in an unlawful assembly, the court observed.

Brief facts 

The present criminal appeal arises from judgment and order of the Allahabad High Court dated September 27, 2012.

By the impugned judgment, the High Court upheld the conviction of the present appellant along with others under Sections 148(Rioting, armed with deadly weapon) and 302 (Punishment for murder) read with 149 (Every member of unlawful assembly guilty of offence committed in prosecution of common object) of the Indian Penal Code, 1860.

Through an order dated January 20, 1997, the Trial Court convicted the appellant along with three others. It sentenced them to undergo rigorous imprisonment for 2 years and pay a fine of Rs.2000 for the conviction under Section 148 IPC and to undergo life imprisonment under Section 302/149 IPC.

Criminal appeals were filed challenging the conviction and sentence, which was dismissed by the High Court division bench. The appellant filed a Special Leave Petition before the Supreme Court in 2013 against the Trial Court's order. On June 30, 2014, the Court denied bail to the appellant against which the present criminal appeal was registered in 2014. 

What did the parties argue?

Prosecution

The prosecution's case is that Shree Dev, deceased Satya Narain and Laxmi Narain were three brothers. Laxmi Narain executed a will in favour of Satya Narain's sons which enraged Shree Dev and his three sons including appellant Nitya Nand.

Shree Dev along with his sons attacked Satya Narain with kanta, knives and country-made pistols when he had reached a temple of Govardhan Nath Ji along with Laxmi Narain and two others, Bhola Shankar and Kuldeep Kumar Tiwari. 

When the deceased's son, Sarwan Kumar, came and tried to save him, the appellant Nitya Nand fired the pistol whereafter all the accused persons made good their escape. 

As per the prosecution's case, the trial court rightly convicted the appellant along with others based on appreciation of the facts, and considering the materials on record. In appeal, the High Court observed that the eyewitnesses' account of the incident fully corroborated with the medical evidence. Therefore, the prosecution's case is proved beyond all reasonable doubt against each of the accused.

Appellant

The appellant's counsel submitted that the Trial Court and the High Court committed a manifest error in convicting the appellant under Section 148 and 302/149 IPC. It is stated that the allegation against the appellant was that he was carrying a country-made pistol. However, neither were there any firearm injuries on the deceased nor on anyone present at the crime scene. Moreover, there was no recovery of any country-made pistol or empty cartridge from the crime scene or anywhere else. 

Further, the appellant's counsel claims that Laxmi Narain, who executed the will, has not been examined as a prosecution's witness. It is also stated that one Kuldeep Kumar Tiwari has also not been examined, which is a glaring omission on the part of the prosecution because it was he who had written the FIR lodged by the informant Sawant.

It is argued that the appellant has been convicted solely based on suspicion. In a criminal trial, the conviction must be based on hard evidence and not on mere suspicion. Even if there is an iota of doubt as to the culpability of an accused, as in the present case, he has to be given the benefit of the doubt.

Government of Uttar Pradesh

The counsel for the State of Uttar Pradesh vehemently opposed any interference in the conviction and sentence of the appellant. It is argued that the appellant was a part of the unlawful assembly. Further, two prosecution witnesses have categorically stated that the appellant was carrying a country-made pistol from which he fired in the air with the intent to frighten Sawant and others and let escape other accused persons. This itself is enough and non-recovery of the country-made pistol or any cartridge fired therefrom cannot be fatal to the prosecution case.

The very act of the appellant in firing from his countrymade pistol to enable the accused persons to escape is clearly an overt act whereby he became part of the unlawful assembly with a common object to cause the death of the deceased. The evidence on record clearly provides that the appellant was part of the unlawful assembly having the common object to kill the deceased.

Lastly, it is stated that the post-incident conduct of the appellant is a significant factor because although Laxmi Narain could have been an important witness, he was killed in 1993 for which the appellant along with others is accused.

What did the Supreme Court say?

The sole issue before the Supreme Court was whether the prosecution could establish the culpability of the appellant beyond any reasonable doubt.

The court found that two sons of the deceased were eyewitnesses and in their statements, the role attributed to the appellant was that he was helping the other accused persons and himself flee from the crime scene. The appellant was roped in by virtue of being a part of the unlawful assembly which had the common object of eliminating Satya Narain by using criminal force. 

The Court observed that the presence of the accused as a part of the unlawful assembly is sufficient for conviction. 

It held: "It is true that there are certain lacunae in the prosecution. The scribe Kuldeep was not examined. Similarly, the younger brother Laxmi Narain was not examined though it has come on record that Laxmi Narain was killed in the year 1993 and in that case one of the accused is the appellant himself. It is also true that neither any country-made pistol was recovered nor any cartridge, empty or otherwise, recovered. However, the appellant has been roped in with the aid of Section 149 IPC. Therefore, as held by this Court in Yunis alias Kariya Vs. State of M.P., no overt act is required to be imputed to a particular person when the charge is under Section 149 IPC; the presence of the accused as a part of the unlawful assembly is sufficient for conviction."

The Court examined Section 149 and said: "Section 149 IPC says that every member of an unlawful assembly shall be guilty of the offence committed in prosecution of the common object. Section 149 IPC is quite categorical. It says that 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 committing of that offence, is a member of the said assembly; is guilty of that offence. Thus, if it is a case of murder under Section 302 IPC, each member of the unlawful assembly would be guilty of committing the offence under Section 302 IPC."

The Court further noted that Section 149 creates a constructive or vicarious liability for members of unlawful assembly pursuant to the common object. It does not create a separate offence as held in Vinubhai Ranchhodbhai Patel Vs. Rajivbhai Dudabhai Patel (2008).

It said: "By application of this principle, every member of an unlawful assembly is roped in to be held guilty of the offence committed by any member of that assembly in prosecution of the common object of that assembly. The factum of causing injury or not causing injury would not be relevant when an accused is roped in with the aid of Section 149 IPC."

Therefore, the relevant question required by the court to answer is: whether the accused was a member of an unlawful assembly and not whether he actually took part in the crime or not.

Case Details: Nitya Nand v. State of U.P. & Anr., Crl AppealNo. 1348 of 2014 

Citation : 2024 LiveLaw (SC) 659

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