S.149 IPC - Prosecution Must Prove Accused Was Aware Of Offences Likely To Be Committed To Achieve Common Object: Supreme Court

The Supreme Court recently emphasized the importance of concrete evidence to establish the common object in cases involving Section 149 of the Indian Penal Code (IPC). This provision deals with vicarious liability of members of an unlawful assembly.

"To convict a person under Section 149 IPC prosecution has to establish with the help of evidence that firstly, appellants shared a common object and were part of unlawful assembly and secondly, it had to prove that they were aware of the offences likely to be committed is to achieve the said common object," the Court said.

The Supreme Court bench comprising Justices S. Ravindra Bhat and Justice Aravind Kumar was hearing an appeal against the Punjab and Haryana HC judgment which affirmed the conviction of appellants under section 302 read with section 149 of IPC.

The case dating back to April 2016 involved a shooting incident in Maheshwari village. The case came to light when Assistant Sub-Inspector (ASI) Ram Kishan, while on patrolling duty, received information about a gunshot fired at a young boy. Upon reaching the scene, he recorded a statement from Mohit, who explained that his cousins, Ajay and Suraj, were being pursued by three individuals on a bullet motorcycle. The driver was identified as Ravi, with Shoaib Khan as the pillion rider, and two more motorcycles carrying riders with batons were following them.

According to Mohit's statement, an unidentified person on the bullet motorcycle fired a country-made revolver, fatally wounding Ajay. Despite being rushed to the hospital, Ajay succumbed to his injuries the following day. Mohit claimed that the shooting resulted from a dispute on the day of 'Dulhandi,' during which Ravi, one of the accused, had threatened to kill Ajay and Suraj.

Subsequently, an FIR was filed, and the accused were apprehended. The charges included Sections 148, 149, 302 of IPC, and Section 25 of the Arms Act. In a judgment dated October 6, 2017, the Sessions Judge convicted the accused persons, a verdict that was upheld by the High Court in 2020.

Aggrieved by the same, the appellants approached the Supreme Court.

The Court referred to Roy Fernandes v. State of Goa (2012) 3 SCC 221 where it was emphasized that the appellant, as a member of the unlawful assembly, needed to know that the murder of the deceased was a likely event in pursuit of the common object.

In Roy Fernandes, it was observed, “Whether the appellant as a member of the unlawful assembly knew that the murder of the deceased was also a likely event in prosecution of the object of preventing him from putting up the fence? The answer to that question will depend upon the circumstances in which the incident occurred and the conduct of the members of the unlawful assembly including the weapons they carried or used on the spot.”

Reinforcing this view, the court relied on the judgment in Lalji v. State of U.P. (1989) 1 SCC 437 which observed “Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behavior of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.”

The Court further elaborated on this principle in Dharam Pal v. State of U.P. (1975) 2 SCC 596 highlighting that the number of assailants did not necessarily have to be significant, and the pre-planning and coordinated actions of the attackers were sufficient to establish vicarious liability.

Applying the principles so discussed in the present case, the Court found that the prosecution had failed to prove that the appellants had a common object with other members of the alleged unlawful assembly.

It noted “The motive alleged was a quarrel that ensued between Ravi and Nabbu with Ajay and Suraj on the day of Dulhandi and Ravi is said to have threatened to kill Ajay. This factor would clearly disclose that the appellants herein were not involved in the fight that occurred on the day of Dulhandi and as such no motive could be attributed to the appellants. The prosecution had failed to prove that the appellants herein had shared a common object with other members of the alleged unlawful assembly.”

Therefore, the court concluded that found that both the key elements to convict a person under section 149 IPC namely- that the appellants shared a common object and were part of the unlawful assembly, and secondly, it had to be proved that they were aware of the offenses likely to be committed to achieve that common object were absent. There was no evidence which connected the appellants with the deceased or the co-accused.

In light of the above, the Supreme Court ruled that the prosecution had failed to prove the appellants' guilt beyond a reasonable doubt. The Court set aside and consequently acquitted the appellants.

Also Read - Distinction Between 'Common Intention' & 'Common Object' : Supreme Court Explains While Setting Aside Conviction In Triple Murder Case

Case title: Naresh @ Nehru v. State of Haryana

Citation: 2023 LiveLaw (SC) 880

For Appellant: Adv. Siddharth Mittal and Adv. Soumik Ghosal

For Respondent: Additional Advocate General Manisha Aggarwal Narain

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