S.149 IPC | If accused is charged with being a member of an unlawful assembly, it is irrelevant whether he caused hurt: Supreme Court

On September 4, the Supreme Court upheld the verdict and order of the Allahabad High Court, which had convicted and punished the accused for murder and sedition with use of deadly weapons.

A bank made of Justices Abhay S. Oka and Ujjal Bhuyan heard an appeal in a criminal case in which the appellant argued that although he had carried a homemade pistol at the scene where other defendants had committed a murder, his pistol did not cause injury because it had been fired to frighten people and cause them to flee the scene.

The court rejected his defence and found that the accused's presence was sufficient to charge him with murder since he was present at the scene of an unlawful assembly with the aim of murdering the deceased.

The court found that no particular person could be held responsible for excessive conduct during an unlawful assembly.

Quick facts

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

By the impugned judgment, the Supreme Court upheld the conviction of the present appellant and others under Sections 148 (rioting while armed with deadly weapons) and 302 (punishment for murder) read with 149 (any member of an unlawful assembly guilty of an offence committed in prosecution of a common object) of the Indian Penal Code, 1860.

By an order dated 20 January 1997, the Court convicted the appellant and three others and sentenced them to two years' imprisonment and a fine of Rs. 2,000 under Section 148 of the IPC and to life imprisonment under Sections 302/149 of the IPC.

An appeal was filed against the conviction and sentence, which was dismissed by the Supreme Court. The appellant filed a petition seeking special leave before the Supreme Court in 2013 against the order of the Court of First Instance. On 30 June 2014, the Court denied the appellant bail, against which the present appeal was filed in 2014.

What did the parties argue?

Law enforcement

The prosecution alleges that Shree Dev, the late Satya Narain and Laxmi Narain were three brothers. Laxmi Narain made a will in favour of Satya Narain's sons, which angered Shree Dev and his three sons, including the appellant Nitya Nand.

Shree Dev along with his sons attacked Satya Narain with kanta, knives and homemade pistols when he 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 rescue him, the appellant Nitya Nand fired the pistol after which all the accused managed to escape.

According to the prosecution's argument, the court was right to convict the appellant and others by considering the facts and the material on record. During the appeal hearing, the Supreme Court observed that the account of the incident given by the eyewitnesses was completely consistent with the medical evidence. Therefore, the prosecution's case against each of the accused is proved beyond reasonable doubt.

Complainant

Counsel for the appellant submitted that the trial court and the Supreme Court committed a manifest error in convicting the appellant under Sections 148 and 302/149 IPC. The appellant is alleged to have carried a homemade pistol. However, neither the deceased nor the persons present at the crime scene bore any gunshot wounds. Moreover, no homemade pistol or empty cartridge cases were found at the crime scene or anywhere else.

Further, the appellant's counsel contends that Laxmi Narain, who drafted the will, was not examined as a prosecution witness. It is also alleged that one Kuldeep Kumar Tiwari was also not examined, which is a glaring omission on the part of the prosecution as it was he who had prepared the FIR filed by the informant Sawant.

It is argued that the applicant was convicted solely on suspicion. In a criminal trial, conviction must be based on solid evidence and not on mere suspicion. Even if, as in the present case, there is even the slightest doubt as to the guilt of an accused, he must be given the benefit of the doubt.

Government of Uttar Pradesh

The counsel for the State of Uttar Pradesh has vehemently opposed any interference in the conviction and sentence of the accused. He argues that the accused was part of the unlawful assembly. Moreover, two prosecution witnesses have categorically stated that the accused was carrying a homemade pistol with which he fired in the air to scare Sawant and others and to make other accused escape. This alone is enough and non-recovery of the homemade pistol or any cartridge fired from it cannot be devastating for the prosecution.

The act of the accused in firing his homemade pistol to enable the accused to escape is clearly an overt act by which he became part of the unlawful assembly whose common object was to cause the death of the deceased. The evidence on record clearly establishes that the accused was part of the unlawful assembly whose common object was to kill the deceased.

Finally, it is stated that the conduct of the applicant after the incident is a significant factor since, although Laxmi Narain could have been a key witness, he was killed in 1993 and he and other persons are facing the death penalty.

What did the Supreme Court say?

The only question before the Supreme Court was whether the prosecution had proved the defendant's guilt beyond a reasonable doubt.

The court noted that two sons of the deceased were eyewitnesses and in their statements the role attributed to the accused was that he had helped the other accused and himself to escape from the scene of crime. The accused was implicated because he was part of the unlawful assembly whose common aim was the elimination of Satya Narain by resorting to criminal force.

The Court found that For a conviction, the presence of the accused at the unlawful assembly is sufficient.

It read: “It is true that there are certain lacunae in the prosecution. The clerk Kuldeep was not examined. Similarly, the younger brother Laxmi Narain was not examined, although it is on record that Laxmi Narain was killed in 1993 and in that case one of the accused is the appellant himself. It is also true that neither a domestically made pistol nor a cartridge, empty or not, was found. However, the appellant was implicated in the matter under Section 149 IPC. Therefore, as this Court has pointed out in Yunis alias Kariya Vs. MP’s Standit is not necessary to attribute an overt act to a particular person when the charge is under Section 149 IPC; the presence of the accused as part of the unlawful assembly is sufficient for conviction.”

The court examined Section 149 and found: “Section 149 of the Penal Code states that every member of an unlawful assembly is guilty of the offence committed by him in the course of prosecution of the common object. Section 149 of the Penal Code is quite categorical. It states that if a member of an unlawful assembly commits an offence in the course of prosecution of the common object of that assembly, or if the members of that assembly knew that it was likely to be committed in the course of prosecution of that object, then every person who is a member of the said assembly at the time of the commission of that offence is guilty of that offence. So, if it is a case of murder under Section 302 of the Penal Code, then every member of the unlawful assembly would be guilty of committing the offence under Section 302 of the Penal Code.”

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

It states: “The application of this principle induces every member of an unlawful assembly to be held guilty of the offence committed by any member of that assembly in pursuit of the common aim of that assembly. The fact whether any hurt was caused or not would not be relevant when an accused is framed with the help of Section 149 IPC..”

Therefore, the relevant question that the court must answer is: Whether the accused was a member of an unlawful assembly does not matter whether he actually participated in the crime or not.

Case Details: Nitya Nand v. State of UP & Anr., Crl Appeal No. 1348 of 2014

Quote: 2024 LiveLaw (SC) 659

Click here to read/download the order.