Supreme Court of India
Nitya Nand vs State Of Uttar Pradesh on 4 September, 2024
Author: Surya Kant
Bench: Abhay S. Oka, Surya Kant
2024 INSC 655 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1348 OF 2014
NITYA NAND APPELLANT(S)
VERSUS
STATE OF U.P. & ANR. RESPONDENT(S)
JUDGMENT
UJJAL BHUYAN, J.
This appeal is directed against the judgment and order
dated 27.09.2012 passed by the Allahabad High Court upholding
the conviction of the appellant alongwith others under Sections
148 and 302/149 of the Indian Penal Code, 1860 (IPC).
2. It may be mentioned that learned Sessions Judge, Etah
vide the judgment and order dated 20.01.1997 passed in Sessions
Trial No. 17 of 1993 convicted the appellant alongwith three others
Signature Not Verified
under Sections 148 and 302/149 IPC and sentenced each of them
Digitally signed by
ARJUN BISHT
Date: 2024.09.04
15:33:48 IST
Reason:
to undergo rigorous imprisonment (RI) for two years and to pay
fine of Rs. 2,000.00 for the conviction under Section 148 IPC with
2
a default stipulation and further sentenced to undergo
imprisonment for life under Section 302/149 IPC. Another
accused Shree Dev was convicted for the offences punishable
under Sections 147 and 302/149 IPC. He was sentenced to
undergo RI for two years and to pay fine of Rs. 2,000.00 with a
default stipulation for the offence committed under Section 147
IPC and to suffer imprisonment for life under Section 302/149 IPC.
3. Being aggrieved by the aforesaid conviction and
sentence, all the five accused persons including the appellant
herein preferred criminal appeal under Section 374 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) before the Allahabad High
Court (High Court) which was registered as Criminal Appeal No.
340 of 1997. By the judgment and order dated 27.09.2012, a
division bench of the High Court affirmed the conviction and
sentence of all the accused persons including that of the appellant
and dismissed the criminal appeal.
4. The appellant then preferred petition for special leave to
appeal before this Court being SLP(Criminal) No. 750/2013. This
Court vide the order dated 04.02.2013 had issued notice on the
special leave petition as well as on the application for bail. On
30.06.2014, this Court granted leave but rejected the prayer for
3
bail. It was thereafter that Criminal Appeal No. 1348 of 2014 came
to be registered.
5. We have heard learned counsel for the parties.
6. Prosecution case in brief is that informant Sarwan
Kumar, son of late Satya Narain, had lodged a written report (First
Information Report) i.e. FIR before Police Station Soron, District
Etah on 08.09.1992 at 05:10 PM. He stated that on 08.09.1992 at
about 04:30 PM, he and his father Satya Narain as well as his
uncle Laxmi Narain as per their daily routine, came to Ganga ghat
near Ambhagarh Akhada, after easing themselves, for taking bath.
At around the same time, from the side of Dhimaro Ka Mohalla,
Bhola Shankar and Kuldeep Kumar Tiwari came. He and his uncle
proceeded ahead while talking with Bhola Shankar and Kuldeep
Kumar Tiwari. This way they had reached the temple of Govardhan
Nath Ji. In the meantime, from the southern side of Tulsi Park,
Shree Dev and his four sons, viz., Munna Lal, Raju, Nitya Nand
and Uchchav @ Pappu, resident of Mohalla Tiraha, Chodah Pore,
P.S. Soron, armed with kanta, knives and country-made pistol
confronted his father Satya Narain. All the accused persons caught
hold of his father and started assaulting him with kanta and
knives. On hearing the cries of his father, informant Sarwan
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Kumar and others dashed towards Satya Narain to save him. It
was then that appellant Nitya Nand fired from his country-made
pistol whereafter all the accused persons made good their escape
from the south-western side. When the informant and others
reached the spot, his father Satya Narain had already succumbed
to the multiple injuries which he had suffered on his body.
6.1. A written report of the incident scribed by Kuldeep
Kumar Tiwari i.e., the FIR was submitted by Sarwan Kumar at
05:10 PM on the same day at P.S. Soron.
6.2. It was mentioned that Shree Dev, deceased Satya
Narain, and Laxmi Narain were the three brothers. Laxmi Narain,
who was the youngest of the three, had no issue; so he had
executed a will in favour of Satya Narain’s sons. Shree Dev and his
sons including the appellant Nitya Nand were enraged by this
disposition of property by Laxmi Narain. This led to filing of several
cases between them. Due to such litigation, there was an old
enmity and for that reason, the accused persons had fatally
assaulted Satya Narain on that fateful day.
7. On the basis of the FIR, Crime No. 237/1992 was
registered at P.S. Soron under Sections 147, 148, 149 and 302
IPC. The investigating officer had carried out investigation of the
5
case. The post-mortem report indicated multiple ante-mortem
injuries on the person of the deceased. On completion of the
investigation, charges under Sections 148 and 302/149 IPC were
framed against the accused Munna, Raju, Uchchav @ Pappu and
Nitya Nand. Similarly, charges under Sections 147 and 302/149
IPC were framed against the accused Shree Dev.
8. The accused persons denied the charges and claimed to
be tried.
9. To prove its case, the prosecution examined a total of
five witnesses. After closure of the prosecution evidence,
statements of the accused persons were recorded under Section
313 Cr.P.C.
10. The trial court on an appreciation of the evidence
adduced and considering the materials on record, convicted the
accused Shree Dev under Sections 147 and 302/149 IPC and also
convicted the appellant and the other sons of Shree Dev i.e. Munna
Lal, Raju and Uchchav @ Pappu under Sections 148 and 302/149
IPC. All the accused were thereafter sentenced as indicated above.
11. In appeal, the High Court observed that the eyewitness
account of the incident stood fully corroborated by the medical
evidence. Prosecution had proved its case beyond all reasonable
6
doubt against each of the accused. Therefore, while upholding the
conviction and sentence, the High Court dismissed the appeal.
12. Learned counsel for the appellant submits that both the
trial court and the High Court committed a manifest error in
convicting the appellant under Sections 148 and 302/149 IPC. He
submits that allegation against the appellant was that he was
carrying a country-made pistol. As the informant and others tried
to rush towards Satya Narain on hearing his cries as he was being
assaulted by the other accused persons, appellant Nitya Nand fired
from his country-made pistol thereby threatening the informant
and the others who tried to rescue Satya Narain. As the appellant
fired from his country-made pistol, all the accused persons made
good their escape from the crime scene. However, neither were
there any firearm injuries on the person of the deceased nor on
anyone else. That apart, there was no recovery of any country-
made pistol or empty cartridge from the crime scene or from
anywhere else. In the absence thereof, both the courts below were
not justified in so convicting the appellant.
12.1. Learned counsel for the appellant further submits that
Laxmi Narain, who was with the deceased and who had walked
ahead along with the informant while talking with Bhola Shankar
7
and Kuldeep Kumar Tiwari, was not examined by the prosecution
as a witness. This is a crucial omission as because only due to
gifting of the property by Laxmi Narain to the sons of the deceased
Satya Narain which led to such bad blood between the brothers
leading to the fatal incident. Learned counsel also emphasized that
another crucial omission on the part of the prosecution is that
Kuldeep Kumar Tiwari was not examined as a witness. Such
glaring omission has cast uncertain shadows over the prosecution
case. Omission to examine Kuldeep Kumar Tiwari as a prosecution
witness has completely punctured the prosecution case because it
was he who had written the FIR lodged by the informant besides
being an eyewitness.
12.2. Learned counsel for the appellant finally submits that
appellant has been convicted solely on the basis of 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. That being the position, the impugned
conviction and sentence of the appellant should be interfered with
by this Court.
8
13. Learned counsel for respondent No. 1, State of U.P., has
vehemently argued that conviction and sentence of the appellant
is fully justified. There is no reason to interfere with the same.
13.1. He submits that there was a clear motive for the accused
persons, including the appellant, to have caused the murder of
Satya Narain. According to him, the accused Shree Dev, deceased
Satya Narain, and Laxmi Narain were the three brothers, Laxmi
Narain being the youngest of the three. Since Laxmi Narayan had
no issue, he executed a will in favour of the sons of Satya Narain.
Shree Dev and his sons, including the appellant, were unable to
come to terms with this development. They were highly agitated
which led to filing of several cases by and between them. This was
the real intention behind the plot to kill Satya Narain.
13.2. Learned counsel for respondent No. 1 submits that the
appellant was very much a part of the unlawful assembly as one
of the persons at the place of occurrence which was mentioned in
the FIR itself. That apart, in their evidence, PW-1 and PW-2,
categorically stated that appellant was carrying a country-made
pistol from which he fired in the air with the intent to frighten the
informant and others who tried to come to the rescue of the
9
deceased. Taking advantage of the situation, the accused persons
escaped from the crime scene.
13.3. The evidence of PW-1 and PW-2 in this regard is
unflinching. Therefore, non-recovery of the country-made pistol or
any cartridge fired therefrom cannot be fatal to the prosecution
case.
13.4. The very act of the appellant in firing from his country-
made 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 appellant was part of the unlawful
assembly having the common object to kill the deceased.
13.5. Learned counsel for respondent No. 1 State submits
that it is a case of direct evidence which clearly establish the
involvement of the appellant in the killing of Satya Narain. The
ocular evidence is fully supported by the medical evidence. That
apart, the post incident conduct of the appellant is also a
significant factor. Laxmi Narain, who could have been an
important eyewitness, was killed on 25.10.1993. In that case,
appellant herein along with others were named as accused.
10
Therefore, it was not possible for the prosecution to present Laxmi
Narain as a prosecution witness.
13.6. He, therefore, submits that there is no merit in the
criminal appeal which should be dismissed.
14. Submissions made by learned counsel for the parties
have received the due consideration of the Court.
15. Question for consideration is whether the prosecution
could establish the culpability of the appellant in the murder of
Satya Narain beyond any reasonable doubt? In other words,
whether the prosecution could prove the charges against the
appellant under Sections 148 and 302/149 IPC beyond any
reasonable doubt?
16. To answer the aforesaid question it is necessary to
briefly analyse the evidence on record. PW-1 is Shri Sarwan Kumar
S/o Late Satya Narain. He is the informant in the case. In his
examination in chief, PW-1 stated that his father Late Satya Narain
was one of the three brothers, Shree Dev being the eldest and
Laxmi Narain alias Daroga being the younger. Shree Dev had four
sons viz. Munna Lal, Raju, Nitya Nand (appellant) and Uchchav
alias Pappu. His uncle Laxmi Narain was issueless and was
residing with Satya Narain. Laxmi Narain gifted all his property to
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the informant and his brothers i.e. to the sons of Satya Narain.
This was not to the liking of the accused persons which resulted
in litigation and enmity.
16.1. He further stated that on the fateful day at about 04:30
PM his father Satya Narain, uncle Laxmi Narain and himself after
easing themselves at about 04:30 PM, had reached Ambhagarh
Akhada, Har Ki Pauri. At the same time from the side of Dhimaro
Ka Mohalla, Shri Kuldeep S/o Ram Prakash and Bhola Shankar
S/o Siaram came. Informant and his uncle Laxmi Narain started
a conversation with the above two persons and while talking with
the two persons went ahead and reached the temple of Goverdhan
Nath Ji. Father of PW-1 Satya Narain had got down from the stairs
for bathing in the Ganga at Har Ki Pauri. In the meanwhile, from
the southern side of Tulsi Park, the accused persons came. While
Shree Dev was armed with a danda, Munna Lal was armed with
kanta. Raju and Uchchav were armed with knives. Appellant Nitya
Nand was carrying a country-made pistol in his hand. As they
confronted Satya Narain, Shree Dev exhorted the other accused
persons to kill him. Thereafter, the accused persons caught hold
of his father and started assaulting him with knives and kanta. As
Satya Narain cried for help, Bhola Shankar, Kuldeep, Laxmi
Narain and PW-1 rushed to help him. They had reached the
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Bharoji temple when appellant Nitya Nand fired a shot in the air
from his country-made pistol to frighten PW-1 and the others.
Taking advantage of the situation, the accused persons made good
their escape from the crime scene through the south-western side.
16.2. As PW-1 went near his father, he found that his father
had received multiple injuries inflicted by knives and kanta on his
head, cheek, neck, back and ribs. His father Satya Narain had died
on the spot with half of his body inside the water. While blood was
splattered on the spot, sandal of his father was lying on the stairs
with stick in the water. PW-1 stated that he had dictated a report
of the incident on the spot to Kuldeep Kumar Tiwari S/o Ram
Prakash who had scribed the same. After he had completed writing
down what was dictated, scribe Kuldeep Kumar Tiwari read over
the same to PW-1 and thereafter took his signature. PW-1 stated
that he along with his uncle Laxmi Narain went to the police
station in a tricycle (rickshaw) and handed over the report to the
incharge of the police station who registered a case and handed
over a copy of the same to PW-1.
17. In his cross-examination PW-1 stated that after hearing
the cries of his father, he had rushed back to the spot. About five-
six nearby people had also gathered there but he could not
13
remember their names. Regarding Bhola Shankar, PW-1 stated
that he came after the incident.
17.1. When PW-1 tried to go near his father, appellant Nitya
Nand had fired in the air to stop him and thereafter he ran away.
No fire was shot for causing injury either to PW-1 or to the
deceased. People did not find any cartridge or empty cartridge on
the spot.
17.2. He admitted that because of his uncle Laxmi Narain
gifting all his property to the sons of Satya Narain including
himself there was enmity between the two sides.
17.3. Regarding the deceased, PW-1 stated that he had taken
his last meal between 02.00 to 02.30 PM when he had taken dal
and roti. His father’s daily routine was to go to Har ki Pauri for
taking a bath in the Ganga. On the fateful day, his father went to
ease himself first and then went for bathing.
17.4. PW-1 stated that his uncle Shree Dev had exhorted the
other accused persons to kill his father. This fact however is not
mentioned in the FIR.
17.5. PW-1 stated that he was at the crime scene for about
half an hour. During this period, about 100-200 people had
gathered. After intimation was sent to home about the incident,
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people from home had also arrived. After getting the report written,
PW-1 proceeded to the police station in a rickshaw and submitted
the same.
17.6. PW-1 denied the suggestion that the incident as
reported in the FIR had not happened at the time mentioned
therein and that the accused persons were falsely implicated due
to previous enmity. He also denied the suggestion that the FIR
(Ex.1) was not written in the handwriting of Kuldeep.
18. Bhola Shankar, son of Satya Narain, deposed as PW-2.
While reiterating what was stated by PW-1 leading to the incident,
he further stated that Satya Narain had cried out for help to save
him when he was being assaulted by the accused persons. He
stated that he alongwith other people rushed to the spot when
appellant Nitya Nand fired from his country-made pistol. He
asserted that he alongwith the other people had seen the accused
assaulting Satya Narain. After the accused persons escaped
towards the south-western side, they came to the spot where Satya
Narain was lying. By that time, he was already dead with half of
his body inside the water.
18.1. In his cross-examination, PW-2 stated that he had seen
the incident with his own eyes. FIR was written by Kuldeep Kumar
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and his statement was also recorded by the police. He further
stated that he had seen Satya Narain falling down the stairs and
crying for help. At that time, PW-1 was also near him and he had
also witnessed the assault.
18.2. He denied the suggestion that he was not present at the
time of the incident and that he was not witness to the writing and
lodging of the FIR. He further denied the suggestion that he was
deposing falsely due to his friendship with the informant.
19. Dr. Satya Mitra, who was serving in the District
Hospital, Etah, deposed as PW-3. He had carried out the post-
mortem examination on the dead body of Satya Narain on
09.09.1992, following which he found the following ante-mortem
injuries on the body of the deceased:
1. Incised wound 10 cm x 1 cm x brain matter
deep over right side and back of head at left of
back of upper and of right external ear. Skin
muscle (scalp) bone meninges and brain cut.
2. Multiple incised wound in an area 10 cm x 7 cm
on the right side cheek and upper part of neck
measuring 1 cm x 0.3 cm muscle deep to 3 cm
x 0.7 cm x bone deep. Mandible on right side
fractured.
3. Stab wound 3 cm x 1 cm x thoracic cavity deep
over right side lateral side of chest 8 cm below
axillary crease. On discussion subcostal muscle
underlying rib, pleura right side, lung right side,
cut direction right to left transverse.
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4. Stab wound 3.5 cm x 1 cm x thoracic cavity
deep on left side chest 6 cm below left nipple.
Skin, muscle underlying the 8th rib, left pleura,
left lung and pericardium part are cut. Direction
left to right and slightly upwards.
5. Multiple incised wound in an area 10 cm x 5 cm
on the left side chest above nipple measuring
2 cm x 0.3 cm x skin deep to 3 cm x 0.5 cm
x muscle and rib deep.
6. Multiple incised wound over back of chest in an
area 20 cm x 20 from base of neck above
measuring 2 cm x 0.2 cm. Muscle deep to 3 cm
x 0.5 cm x thoracic cavity deep. Right scapula
cut. Right pleura and right lung cut at places.
7. Multiple incise wound in an area 10 cm x 6 cm
over front and external aspect of left upper arm
3 cm below the left shoulder joint.
19.1. He opined that death was possibly caused due to shock
and haemorrhage as a result of the injuries. The injuries were
caused by sharp-edged weapons like kanta, knives etc.
19.2. PW-3 proved the post-mortem report which was in his
handwriting as well as his signature thereon.
20. At the relevant point of time, Ramesh Chandra Sharma
served as Inspector at Soron Police Station. He deposed as
PW-4. He has stated that investigation of the case was started by
Shri Devi Dayal Prajapati from whom he had taken over the
17
investigation on 23.09.1992. On completion of investigation, he
had submitted the chargesheet on 13.10.1992.
20.1. In his cross-examination, he has stated that he did not
record the statement of any of the witnesses. On the basis of the
statements recorded by his predecessor Shri Devi Dayal Prajapati,
and after perusal of other documents, the chargesheet was
submitted against the accused persons.
21. Shri Devi Dayal Prajapati deposed as PW-5. He has
stated that on the date of receipt of the first information, he had
recorded the statements of Laxmi Narain, Bhola Shankar, Kuldeep
Kumar and the witnesses of the panchnama. Despite search, the
accused persons were not found and, therefore, they could not be
arrested. Thereafter, investigation was taken over by PW-4.
21.1. In his cross-examination, he admitted that though he
had taken blood sample from the stairs where the dead body of
Satya Narain was found, he did not send the sampled blood for
chemical examination. Though he had recorded the statement of
the informant, the latter did not mention in his statement that his
uncle Shree Dev had exhorted the other accused persons to kill his
father and that he should not be spared as he had grabbed the
property of his younger brother. Again, he did not mention in the
18
case diary that Bhola Shankar was present on the spot. That apart,
Bhola Shankar did not mention the names of any assailant.
22. From the evidence tendered on behalf of the
prosecution, it is clear that PW-1 and PW-2 are the eyewitnesses.
When PW-1 Satya Narain and Laxmi Narain had reached Har Ki
Pauri at Ambhagarh Akhada, they were joined by Kuldeep and
Bhola Shankar (PW-2). PW-1 and Laxmi Narain went ahead talking
with Kuldeep and PW-2. Satya Narain was walking down the steps
for a dip in the river. At that time, the accused persons arrived at
the scene from the southern side of Tulsi Park. Both PW-1 and PW-
2 were categorical in their evidence that Shree Dev was armed with
a danda, Munna Lal was armed with kanta and Raju and Uchchav
were armed with knives. Appellant Nitya Nand was carrying a
country-made pistol in his hand. Though the appellant did not
assault Satya Narain, the other accused persons actively
participated in the assault. Hearing the cries of Satya Narain, PW-
1, PW-2, Kuldeep and Laxmi Narain rushed back. When they had
reached near the crime scene, appellant Nitya Nand fired a shot in
the air from his country-made pistol to frighten PW-1 and the
others. As the appellant fired in the air, all the accused persons
escaped from the crime scene.
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23. At this stage, we may mention that PW-2 was categorical
in his cross-examination that he had seen the incident with his
own eyes and that PW-1 was also with him then.
24. Neither PW-1 nor PW-2 has stated that appellant had
fired at them nor he had fired at the deceased. The role attributed
to the appellant was helping the other accused persons and
himself flee from the scene of crime by frightening the people
including PW-1 and PW-2 when they were about to reach the crime
scene by firing from his country-made pistol into the air. The fact
that the death of Satya Narain was homicidal has been fully
established by the post-mortem report as well as by the evidence
of PW-3 i.e. the doctor. The ocular evidence supported by the
medical evidence clearly establish that it was a case of murder of
the deceased by the other accused persons under Section 302 IPC.
25. Appellant has been roped in by virtue of Sections 148
and 149 IPC. Appellant was a part of the unlawful assembly which
had the common object of eliminating Satya Narain by means of
criminal force and, therefore, being a member of the unlawful
assembly, he was also guilty of the offence committed in
prosecution of the common object i.e. the offence under Section
302 IPC.
20
26. At this juncture, we may briefly survey the relevant legal
provisions.
27. Section 141 IPC defines unlawful assembly. It says an
assembly of five or more persons is designated as unlawful
assembly if the common object of the persons composing that
assembly is to commit an illegal act by means of criminal force.
28. As per Section 148 IPC which deals with rioting armed
with deadly weapon, whoever is guilty of rioting, being armed with
a deadly weapon or with anything which, used as weapon of
offence, is likely to cause death, shall be punished with
imprisonment of either description for a term which may extend to
three years, or with fine, or with both. Rioting is defined in Section
146 IPC. As per the said definition, whenever force or violence is
used by an unlawful assembly, or by any member thereof, in
prosecution of the common object of such assembly, every member
of such assembly is guilty of the offence of rioting.
29. This brings us to the pivotal section which is Section
149 IPC. 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
21
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.
30. In Krishnappa Vs. State of Karnataka1, this Court while
examining Section 149 IPC held as follows:-
20. It is now well-settled law that the provisions
of Section 149 IPC will be attracted whenever
any offence committed by any member of an
unlawful assembly in prosecution of the
common object of that assembly, or when the
members of that assembly knew that offence is
likely to be committed in prosecution of that
object, so that every person, who, at the time of
committing of that offence is a member, will be
also vicariously held liable and guilty of that
offence. Section 149 IPC creates a constructive
or vicarious liability of the members of the
unlawful assembly for the unlawful acts
committed pursuant to the common object by
any other member of that assembly. This1
(2012) 11 SCC 237
22principle ropes in every member of the assembly
to be guilty of an offence where that offence is
committed by any member of that assembly in
prosecution of common object of that assembly,
or such members or assembly knew that offence
is likely to be committed in prosecution of that
object.
21. The factum of causing injury or not causing
injury would not be relevant, where the accused
is sought to be roped in with the aid of Section
149 IPC. The relevant question to be examined
by the court is whether the accused was a
member of an unlawful assembly and not
whether he actually took active part in the crime
or not.
30.1. Thus, this Court held that Section 149 IPC creates a
constructive or vicarious liability of the members of the unlawful
assembly for the unlawful acts committed pursuant to the
common object by any other member of that assembly. 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. The question which is relevant and which
23
is required to be answered by the court is whether the accused was
a member of an unlawful assembly and not whether he actually
took part in the crime or not.
31. As a matter of fact, this Court in Vinubhai Ranchhodbhai
Patel Vs. Rajivbhai Dudabhai Patel2 has reiterated the position that
Section 149 IPC does not create a separate offence but only
declares vicarious liability of all members of the unlawful assembly
for acts done in common object. This Court has held:
20. In cases where a large number of accused
constituting an “unlawful assembly” are
alleged to have attacked and killed one or more
persons, it is not necessary that each of the
accused should inflict fatal injuries or any
injury at all. Invocation of Section 149 is
essential in such cases for punishing the
members of such unlawful assemblies on the
ground of vicarious liability even though they
are not accused of having inflicted fatal injuries
in appropriate cases if the evidence on record
justifies. The mere presence of an accused in
such an “unlawful assembly” is sufficient to
render him vicariously liable under Section
149 IPC for causing the death of the victim of
the attack provided that the accused are told2
(2018) 7 SCC 743
24that they have to face a charge rendering them
vicariously liable under Section 149 IPC for the
offence punishable under Section 302 IPC.
Failure to appropriately invoke and apply
Section 149 enables large number of offenders
to get away with the crime.
* * * * *
22. When a large number of people gather
together (assemble) and commit an offence, it
is possible that only some of the members of
the assembly commit the crucial act which
renders the transaction an offence and the
remaining members do not take part in that
“crucial act” — for example in a case of murder,
the infliction of the fatal injury. It is in those
situations, the legislature thought it fit as a
matter of legislative policy to press into service
the concept of vicarious liability for the crime.
Section 149 IPC is one such provision. It is a
provision conceived in the larger public interest
to maintain the tranquility of the society and
prevent wrongdoers (who actively collaborate
or assist the commission of offences) claiming
impunity on the ground that their activity as
members of the unlawful assembly is limited.
* * * * *
34. For mulcting liability on the members of an
unlawful assembly under Section 149, it is not
necessary that every member of the unlawful
25
assembly should commit the offence in
prosecution of the common object of the
assembly. Mere knowledge of the likelihood of
commission of such an offence by the members
of the assembly is sufficient. For example, if
five or more members carrying AK 47 rifles
collectively attack a victim and cause his death
by gunshot injuries, the fact that one or two of
the members of the assembly did not in fact fire
their weapons does not mean that they did not
have the knowledge of the fact that the offence
of murder is likely to be committed.
32. 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.3, 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
3
(2003) 1 SCC 425
26
part of the unlawful assembly is sufficient for conviction. It is clear
from the evidence of PW-1 and PW-2 that the appellant was part
of the unlawful assembly which committed the murder. Though
they were extensively cross-examined, their testimony in this
regard could not be shaken.
33. In view of what we have discussed above, we have no
doubt in our mind that the trial court had rightly convicted the
appellant under Section 148 IPC read with Section 302/149 IPC
and that the High Court was justified in confirming the same. The
question framed in paragraph 15 above is therefore answered in
the affirmative.
34. Thus, we see no merit in the appeal which is accordingly
dismissed.
…………………………………J.
[ABHAY S. OKA]
…………………………………J.
[UJJAL BHUYAN]
NEW DELHI;
04.09.2024